VIRGINIA PIZZUTO, Administratrix of the Estate of her husband THOMAS PIZZUTO, and on her own behalf; TOMMY PIZZUTO, by his mother and natural guardian VIRGINIA PIZZUTO; CAROL PIZZUTO; ROSARIO PIZZUTO; JOSEPH PIZZUTO; RUSSELL PIZZUTO; and ANTHONY PIZZUTO, Plaintiffs, v. COUNTY OF NASSAU et al., Defendants.

CV 00-0148 (NGG)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

239 F. Supp. 2d 301; 2003 U.S. Dist.

January 16, 2003, Decided


DISPOSITION: [**1] Plaintiff's motion for summary judgment granted in part and denied in part.




COUNSEL: For VIRGINIA PIZZUTO, TOMMY PIZZUTO, CAROL PIZZUTO, ROSARIO PIZZUTO, JOSEPH PIZZUTO, RUSSELL PIZZUTO, ANTHONY PIZZUTO, plaintiffs: Peter J. Neufeld, Cochran Neufeld & Scheck, LLP, New York, NY.

For COUNTY OF NASSAU, SHERIFF'S DEPARTMENT OF NASSAU COUNTY, JOSEPH P JABLONSKY, JOSEPH JABLONSKY, NASSAU CTY CORR. FAC, defendants: Paul F. Millus, Snitow & Cunningham, LLP, Paul F. Millus, Snitow, Kanfer, Holtzer & Millus, New York, NY.

For NASSAU COUNTY CORRECTIONAL CENTER, defendant: Paul F. Millus, Snitow, Kanfer, Holtzer & Millus, [**2] New York, NY.

For PATRICK REGNIER, defendant: Ernest Peace, Mineola, NY.

For RICHARD TIRINO, defendant: Alan J. Reardon, Carole A. Burns & Associates, Mineola, NY.

For NASSAU COUNTY CIVIL SERVICE EMPLOYEES ASSOCIATION LOCAL-830, defendant: Peter Monaghan, Bartlett, McDonough, Monaghan & Berk, Mineola, NY.

For SHERIFF OFFICER'S ASSOCIATION, MICHAEL ADAMS, defendants: Thomas A. Toscano, Thomas Toscano, P.C., Mineola, NY.

JUDGES: Nicholas G. Garaufis, United States District Judge.

OPINIONBY: Nicholas G. Garaufis

OPINION:
[*305] MEMORANDUM AND ORDER

GARAUFIS, United States District Judge.
Plaintiffs bring this action under 42 U.S.C. § 1983, alleging that Defendants are liable under federal and state law for the murder of Thomas Pizzuto by corrections officers of the Nassau County Correctional Center ("NCCC"). Now before the court, Plaintiff Virginia Pizzuto, the decedent's surviving wife, moves for partial summary judgment against defendants Edward Velazquez, Patrick Regnier, Ivano Bavaro, Joseph Bergen, Gary Pincus and Nassau County.
For the reasons set forth below, Plaintiff's motion for summary judgment is granted with respect to defendants Velazquez, [**3] Regnier, Bavaro, Bergen and Nassau County. Plaintiff's motion for summary judgment against defendant Pincus is granted in part and denied in part.
[*306] FACTUAL BACKGROUND
The facts underlying Plaintiff's claims are set out at length in this court's decision of November 19, 2002. Following is a brief recitation of the facts relevant to Plaintiff's motion for summary judgment. All facts are undisputed unless otherwise noted.
On January 7, 1999, Thomas Pizzuto, age 38, was sentenced to ninety days in jail on the misdemeanor charge of driving under the influence of methadone. (Second Am. Compl., P 16.) Later that day, Pizzuto was incarcerated at the NCCC and assigned to a one-person cell in the NCCC's Observation Tier. Pizzuto's assignment to this unit was based on his status as an inmate receiving methadone treatment. (Plaintiff's Rule 56.1 Statement ("Pl. Stmt"), P 1.)
On January 8, his first full day in jail, Pizzuto began yelling from the inmate shower area that he needed his court-ordered methadone treatment. (Id.) Defendant Edward Velazquez, a guard assigned to Pizzuto's cell block, told Pizzuto to "shut the fuck up" and to return to his cell. See U.S. v. Velazquez, 246 F.3d 204, 206 (2d Cir. 2001). [**4] Pizzuto refused, responding: "Fuck you, you are not going to tell me what to do." Id. In response, Velazquez and another guard, Ivano Bavaro, ordered all Observation Tier inmates to "lock in" to their cells. (Pl. Stmt, P 2.) At this time, Pizzuto obeyed the order and entered his cell. (Id.) After ordering the lock in, defendants Velazquez, Bavaro, and Patrick Regnier consulted with defendant Gary Pincus, the supervising officer on duty. (Id.) Velazquez reported to Pincus that Pizzuto had not immediately heeded an order to return to his cell. Pincus then instructed Velazquez, Regnier and Bavaro to confront Pizzuto and "quiet him down." (Id.)
The three corrections officers donned surgical gloves, opened the security gate and entered the inmate walkway, proceeding toward Pizzuto's cell with the admitted intention of using "unreasonable force," if necessary, to quiet him down. (Id.) Velazquez and Regnier stated in their plea allocutions that they had initially anticipated yelling at Pizzuto through the bars of his cell. (Id., Ex. C.) However, as soon as the officers reached Pizzuto's cell, Pincus opened the cell door, prompting Velazquez and Regnier to enter. [**5] Bavaro remained outside standing guard. (Id. P 3.) In his plea allocution, Velazquez described the events that followed:


Mr. Pizzuto was a large man of approximately 270 pounds, your Honor. I shouted at him to shut his mouth. However, he continued to scream that he wanted his methadone and wanted to go to medical. Without provocation, your Honor, I pushed him back to his bed and slapped him with an open hand and punched him. At that point, Officer Regnier and myself struggled with Mr. Pizzuto which resulted in the three of us landing on the floor fo the cell. During this entire time I was yelling at Mr. Pizzuto to keep quiet and stop resisting and disrupting the tier.


(Id., Ex. C.)
The officers viciously beat Pizzuto for approximately one minute. Velazquez, 246 F.3d at 208. Velazquez punched Pizzuto in the eye with a closed fist, pushed him into a prone position, and continued punching him. Id. At the same time, Regnier punched Pizzuto in the lower part of his back and kneed him on his lower back and legs. Id. Pizzuto never fought back. Id. According to his deposition testimony, defendant Pincus heard thuds, banging, crying [**6] and moaning from Pizzuto's cell, and felt vibrations from the walls. (Pl. Stmt, P 10.) Pincus testified that he believed the [*307] officers were using excessive force against Pizzuto, but he nonetheless failed to intercede. (Id.) Once the officers had beaten Pizzuto into submission, they left him lying in his cell with extensive visible injuries, including a swollen and blackened left eye, a swollen left cheek, abrasions to his left cheek, bruises and contusions on his chest, shoulder, torso and back, and a contusion on his leg. (Id. P 12.) In addition, it was later discovered that his spleen was lacerated by the force of the punches or kicks to his torso. (Id. P 13.) The officers reported back to Pincus that no "injury report" or "use of force report" was needed. (Id. P 11.) As a result, Pizzuto received no immediate medical care.
When defendant Joseph Bergen replaced Pincus as the on-duty supervisor over an hour later, Pincus informed Bergen that "my guys smacked D-3 around a little." (Id. P 11.) Bergen replied that he would prepare an accident report claiming that Pizzuto had slipped and fallen in the shower. (Second Am. Compl., P 33.) Shortly thereafter, Bergen sent [**7] just such an accident report to a medical technician who escorted Pizzuto to the Medical Unit. (Id. PP 33, 34.) The only treatment Pizzuto received, despite his extensive visible injuries, was a bag of ice. (Pl. Stmt, P 26.) Pizzuto was returned to his cell later that evening. (Second Am. Compl., P 34.)
Three days later, on January 11th, Thomas Pizzuto collapsed in his cell and was subsequently taken to the Nassau County Medical Center ("NCMC"). (Id. P 36.) Pizzuto died two days later. (Pl. Stmt, P 27.) The County Deputy Medical Examiner attributed the death to a ruptured spleen and declared his death a homicide. (Id., Ex. T.)
Defendants Velazquez, Regnier, Bavaro, Bergen and Pincus were all indicted in the Eastern District of New York for federal civil rights crimes in connection with the death of Thomas Pizzuto. Pincus entered into a cooperation agreement and pled guilty to the lesser charge of misprision of a felony for failing to report Velazquez and Regnier's criminal assault on Pizzuto. (Id. P 29.) Bavaro pled guilty to violating 18 U.S.C. § 371 by conspiring to deprive Thomas Pizzuto of his right to be free from cruel and usual punishment [**8] resulting in death, and also to witness tampering. (Id. P 31.) Defendants Velazquez and Regnier pled guilty to violating 18 U.S.C. § § 241 and 242 for conspiring to deprive, and in fact, depriving Thomas Pizzuto of his right to be free from cruel and usual punishment resulting in bodily injury and death. (Id. P 33.) A jury convicted Bergen for being an accessory after the fact to the conspiracy, and for depriving Pizzuto of his Eighth Amendment right to be free from cruel and unusual punishment, in violation of 18 U.S.C. § § 241 and 242. (Id. P 38.)
Following the convictions of the five corrections officers, Plaintiff filed this civil action for damages on her own behalf and on behalf of Thomas Pizzuto.
DISCUSSION

I. Legal Standards
A. Summary Judgment
A grant of summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party carries the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). [**9] In deciding a motion for summary judgment, the court must construe the facts in the light most favorable to the nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, [*308] 106 S. Ct. 2505 (1986), and all reasonable inferences and ambiguities must be resolved against the moving party. Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001).
B. Collateral Estoppel Against The Individual Defendants
Plaintiff moves for summary judgment against defendants Velazquez, Regnier, Bavaro, Pincus and Bergen on the grounds that (1) their convictions collaterally estop them from disputing their acts and the legal consequences thereof, and (2) their own sworn testimony in the criminal proceedings and this civil action eliminates any material question of fact regarding their civil liability. The individual defendants have not replied to Plaintiff's motion for summary judgment.
It is well-settled that a criminal conviction, whether by jury verdict or guilty plea, constitutes estoppel in favor of a private party in a subsequent civil action with regard to any issue of fact or law (1) that is identical to the issue raised in the [**10] prior proceeding; (2) that was actually litigated and decided in the prior proceeding; (3) that the defendants had a full and fair opportunity to litigate; and (4) that needed to be determined in order to reach a valid and final judgment on the merits. See Central Hudson Gas & Elec. Corp. v. Empresa Naviera Santa SA., 56 F.3d 359, 368 (2d Cir. 1995). A guilty plea qualifies as actual litigation for purposes of collateral estoppel in a subsequent civil trial. Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 43 (2d Cir. 1986).

II. Federal Law Claims
A. Count I: Conspiracy to Violate Pizzuto's Eighth Amendment Rights
Plaintiff claims that the convictions and sworn deposition testimony of Velazquez, Regnier, Bavaro and Bergen conclusively establish that Defendants conspired to deprive Pizzuto of his constitutional rights, including the right (1) to be free from the intentional use of unreasonable force; (2) to be free from cruel and unusual punishment as an incarcerated inmate; (3) to have access to and seek redress in the courts; (4) to be free from the delay and denial of medical attention; (5) to be free from unnecessary and wanton infliction [**11] of pain; and (6) not to be deprived of life without due process of law.
1. Velazquez and Regnier
Defendants Velazquez and Regnier each pled guilty to violating 18 U.S.C. § 241 by conspiring to deprive Thomas Pizzuto of his right to be free from cruel and usual punishment under the Eighth Amendment. (Pl. Stmt, P 33.) To determine whether these guilty pleas collaterally estop Defendants from disputing their civil liability under Count I of Plaintiff's complaint, I apply the standards set out in Central Hudson, 56 F.3d at 368.
The court first considers whether the convictions of Velazquez and Regnier "settled issues of fact and law that are identical to those raised in this case." See Id. To establish a civil conspiracy under § 1983, Plaintiff has the burden of showing (1) that two or more people entered into an agreement to violate the victim's civil rights, (2) that the alleged co-conspirators shared in the general conspiratorial objective, and (3) that an overt act was committed in furtherance of the conspiracy that caused injury to him. See Beck v. Prupis, 529 U.S. 494, 503, 146 L. Ed. 2d 561, 120 S. Ct. 1608 (2000) [**12] (requiring overt tortious act in addition to traditional elements of a conspiracy); Old Security Life Ins. Co. v. Continental Ill. Nat. Bank & Trust Co., 740 F.2d 1384, 1397 (7th Cir. 1984) [*309] ("Civil conspiracy is an agreement of two or more people to commit an unlawful act, or to inflict a wrong against another, and an overt act that results in damages."); see also Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir. 1979), rev'd in part on other grounds, 446 U.S. 754, 64 L. Ed. 2d 670, 100 S. Ct. 1987 (1980).
By pleading guilty to violating § 241, Defendants admitted that they (1) intended and in fact did join an agreement between two or more people to violate Thomas Pizzuto's civil rights, and (2) that they knew of the conspiracy and voluntarily participated in it. U.S. v. Skillman, 922 F.2d 1370 (9th Cir. 1990). Because § 241 does not require an overt act as one of its constituent elements, Defendants' guilty pleas under Count One of the indictment did not necessarily establish that they took an overt act in furtherance of the conspiracy. See U.S. v. Morado, 454 F.2d 167 (1972). However, in pleading guilty [**13] to violating 18 U.S.C. § 242, Defendants did admit to performing an overt act -- the battery of Pizzuto. Thus, when considered together, Defendants' guilty pleas under § 241 and § 242 clearly establish a set of facts that are identical to those necessary for satisfying the elements of a civil conspiracy claim.
Central Hudson also requires that Defendants actually litigated the issues underlying their criminal liability and that they had a full and fair opportunity to do so. This requirement was satisfied when Defendants entered their guilty pleas. See Gelb, 798 F.2d at 43.
Finally, Central Hudson requires that the criminal findings relevant to civil liability were necessary to support a valid and final judgment on the merits of the criminal proceedings. As set out above, Defendants' liability under Counts One and Three of the indictment was only established when the government satisfied elements that are identical to the elements of a civil conspiracy claim.
Accordingly, I find that Velazquez and Regnier's criminal convictions conclusively establish their liability under Count I of Plaintiff's complaint.
2. Bavaro
Defendant [**14] Bavaro pled guilty to violating 18 U.S.C. § 371 by conspiring to deprive Thomas Pizzuto of his right to be free from cruel and usual punishment. (Pl. Stmt, P 31.) The factual basis for Bavaro's plea was the admission that:


On January 8, 1999, I joined Edward Velazquez and Patrick Regnier on the D-Block tier and stood in front of Thomas Pizzuto's cell while Officers Velazquez and Regnier were inside the cell beating him. I stood in front of the cell throughout the beating in order to assist Officers Velazquez and Regnier by making sure that Mr. Pizzuto did not fight back or try to leave the cell. By standing in front of the cell I also intended to discourage other inmates on the tier from later telling anyone what they saw or heard during the beating.


(Id. P 6.) Bavaro further testified at his deposition that when Velazquez told him that they were going "to pay [Thomas Pizzuto] a visit," he understood that the officers were going to use physical force against him. (Id. P 7.)
The elements of a criminal conspiracy under § 371 are identical to those of a civil conspiracy under § 1983. Compare Old Security Life, 740 F.2d at 1397, [**15] with U.S. v. Jobe, 101 F.3d 1046 (5th Cir. 1996). Accordingly, I find that Bavaro's criminal conviction conclusively establishes his civil liability for conspiring to deprive Pizzuto of his Eighth Amendment right to be free from cruel and unusual punishment as an incarcerated inmate. Summary judgment [*310] is therefore granted against defendant Bavaro with respect to Count I.
3. Bergen
A jury convicted Bergen for being an accessory after the fact to the conspiracy, and also for the substantive crime of depriving Pizzuto of his right to be free from cruel and unusual punishment in violation of 18 U.S.C. § § 241 and 242. (Pl. Stmt., P 38.) For the same reasons set out in relation to Velazquez and Regnier, I find that Bergen is also liable as a matter of law with respect to Count I.
B. Count III: Deprivation of Rights Under the Eighth Amendment
Defendants Velazquez and Regnier pled guilty to depriving Pizzuto of his Eighth Amendment right to be free from cruel and unusual punishment. For the same reasons stated in relation to Plaintiff's conspiracy claims, I find that Velazquez and Regnier are estopped from disputing their civil [**16] liability for their battery of Thomas Pizzuto. Summary judgment is therefore granted against Velazquez and Regnier with respect to Count III.
C. Count IV: Failure to Protect Under the Eighth Amendment
Plaintiff asserts that defendant Bavaro is liable as a matter of law under the Eighth Amendment for exhibiting deliberate indifference to a substantial risk of serious harm to Pizzuto during his battery.
It is well established that "[a] prison official's 'deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 828, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994). To establish deliberate indifference under the Eighth Amendment, a plaintiff must show "something more than mere negligence; but proof of intent is not required, for the deliberate-indifference standard is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996) (internal quotations omitted).
As stated above, Bavaro has testified and does not now dispute that he knew in advance [**17] that Velazquez and Regnier planned to use excessive force against Pizzuto. (Pl. Stmt, P 7.) In addition, Bavaro accompanied Velazquez and Regnier to Pizzuto's cell, and watched Velazquez and Regnier viciously beat Pizzuto for approximately one minute. (Id. P 6.) He did not intercede on behalf of Pizzuto and in fact admitted that his presence was intended both to ensure that Pizzuto did not fight back and to keep other inmates on the tier from interfering. (Id. P 9.) As these facts are undisputed, I find that Bavaro's conduct demonstrated as a matter of law a "deliberate indifference to a substantial risk of serious harm" to Thomas Pizzuto in violation of Pizzuto's rights under the Eighth Amendment right. I therefore grant summary judgment against Bavaro with respect to Count IV.
D. Count VI: Deliberate Indifference to Serious Medical Needs
Plaintiff claims that the undisputed facts demonstrate that Velazquez, Regnier, Bavaro and Pincus failed to seek immediate medical treatment for Pizzuto and are therefore liable under the Eighth Amendment for the "unnecessary and wanton infliction of pain" upon an inmate.
The United States Supreme Court has held that "deliberate [**18] indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain ... proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104, [*311] 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (quotation marks omitted); see also, Kaminsky v. Rosenblum, 929 F.2d 922, 926 (2d Cir. 1991) (cruel and unusual punishment may consist of prison officials delaying an inmate access to needed medical care).
Defendants Velazquez and Regnier brutally beat Pizzuto and left him moaning in his cell. Thereafter, they decided not to file an accident report and further advised their supervisor, Gary Pincus, that no such report was needed. (Pl. Stmt., P 11.) The effect of these actions was to preclude Pizzuto from receiving immediate medical attention. Although Pizzuto was sent to the Medical Unit later in the day by defendant Bergen, this was done despite the efforts of Velazquez, Regnier and Bavaro. It is therefore clear that Defendants were indifferent to Pizzuto's medical needs.
Moreover, having battered Pizzuto in a manner sufficient to kill him, Velazquez and Regnier should have been aware of the seriousness of Pizzuto's [**19] medical needs. Indeed, the severity of his injuries were manifest by visible bruises on his back and face. (Pl. Stmt, P 12.) Bavaro, having witnessed the beating first hand, should have likewise known of the seriousness of Pizzuto's injuries. I therefore grant summary judgment against Velazquez, Regnier and Bavaro with respect to Count VI.
Unlike the other defendants, Pincus did not take part or witness the beating of Thomas Pizzuto. This lack of personal knowledge as to the severity of Pizzuto's beating precludes the court from granting summary judgment against Pincus. There exists a remote possibility that a jury might still find that Pincus did not know that Pizzuto had "serious medical needs" as a result of the beating, despite the screams, moans, and other noises emanating from his cell.
E. Count VIII: Supervisory Liability
Plaintiff claims that Pincus is liable under the Eighth Amendment for his own personal involvement as a supervisor in the beating of Thomas Pizzuto and for his subsequent failure to provide Pizzuto with medical care. She further claims that Pincus is liable for the acts of his subordinates in depriving Pizzuto of his constitutional rights.
1. Personal [**20] Involvement
Supervisory officials are liable for constitutional violations where they were personally involved in such violations. Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997); see also, Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). To establish personal involvement, a plaintiff must demonstrate that a supervisor "directly participated in the violation" or "failed to remedy the violation after learning of it." See Sealey, 116 F.3d at 51; see also, Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (supervisory liability exists for "a person who, with knowledge of the illegality, participates in bringing about a violation of the victim's rights but does so in a manner that might be said to be indirect -- such as ordering or helping others to do the unlawful acts, rather than doing them him -- or herself").
I have already found that Bavaro, Velazquez and Regnier deprived Pizzuto of his Eighth Amendment right to be free from cruel and unusual punishment as an incarcerated inmate. It is also undisputed that Pincus directly participated in these acts by instructing Bavaro, Velazquez [**21] and Regnier to control Pizzuto's behavior through the use of force if necessary, and by opening the cell door for the three officers and thereby allowing them to enter Pizzuto's cell. (Pl. Stmt, P 2, Ex C.) I therefore enter summary judgment against Pincus with respect to Count VIII.
[*312] 2. Acts of Subordinates
Supervisory liability may be imposed "when an official has actual or constructive notice of unconstitutional practices and demonstrates gross negligence or deliberate indifference by failing to act." Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989).
It is undisputed that Pincus instructed his subordinates to control Pizzuto by force if necessary. From his vantage point at the lock box some forty feet away, Pincus saw Velazquez and Regnier enter Pizzuto's cell, and heard "banging" and "thuds" coming from Pizzuto's cell during the beating. (Pl. Stmt, Ex. D at 75.) He also felt vibrations from the beating and heard Pizzuto moaning and crying. (Id. at 81, 85.) Pincus testified that he believed Velazquez and Regnier were using excessive force against Pizzuto and inflicting physical injury upon Pizzuto. (Id. at 78, 86.) He also testified [**22] that he did not act to stop the beating. (Id. at 84.) Finally, Pincus acceded to the Velazquez's suggestion that no injury report be filed and failed to immediately check Pizzuto's medical condition following the beating. (Id. at 86.) I find that this course of conduct constitutes, at minimum, gross negligence in violation of Pincus' duty to protect inmates from foreseeable risks of harm. This conduct thus provides an independent basis for granting summary judgment against Pincus with respect to Count VIII.

III. State Law Claims
A. Count XI: Liability for Battery Under New York State Law
In their plea allocutions, Velazquez and Regnier both admitted to battering Thomas Pizzuto without justification. These admissions conclusively establish unconsented bodily contact and thus the tort of battery. McMillan v. Williams, 455 N.Y.S.2d 523 (Sup. Ct. 1982). Summary judgment is therefore granted against Velazquez and Regnier with respect to Count XI.
B. Count X: Supervisory Liability Under New York State Law
Plaintiff claims that Pincus is liable for negligent supervision under New York state law. As a correction officer employed by the NCCC, defendant [**23] Pincus owed Pizzuto a duty of reasonable care. In the prison context, this duty is to "protect [] inmates from foreseeable risks of harm." Colon v. State, 209 A.D.2d 842, 843, 620 N.Y.S.2d 1015 (3d Dep't 1994). Thus, "whether a breach of duty has occurred depends upon whether the resulting harm was a reasonably foreseeable consequence of the defendant's acts or omissions." Gordon v. City of New York, 70 N.Y.2d 839, 841, 523 N.Y.S.2d 445, 517 N.E.2d 1331 (1987).
Although gross negligence is usually a matter for the jury, it may in certain circumstances be found as a matter of law. See, e.g., In re Hubbell's Will, 302 N.Y. 246, 258-59, 97 N.E.2d 888 (1951) (holding trustees guilty of gross negligence as a matter of law in failing to take any steps toward converting corpus of trust into income producing assets within five years of deceased's death).
In light of the facts set out in relation to Plaintiff's federal law claim for supervisory liability, I find that defendant Pincus was, as a matter of law, grossly negligent in failing to perform his duty to protect Pizzuto from foreseeable harm. Summary judgment is therefore granted against [**24] Pincus with respect to Count X.
C. Count XVII: Nassau County's Respondeat Superior Liability
Plaintiff asserts that the individual defendants' tortious acts against Thomas [*313] Pizzuto under Counts X and XI were committed while working within the scope of their employment and that Nassau County is therefore liable for these acts as a matter of law under the doctrine of respondent superior. Defendant Nassau County responds that the individual defendants' actions cannot be deemed to have been committed within the scope of their employment because they were taken for wholly personal reasons and because they constituted gross violations of NCCC regulations.
Employers are liable for their employees' actions where such actions are undertaken at the "explicit direction of the employer," Schiraldi v. AMPCO System Parking, 9 F. Supp. 2d 213, 219 (W.D.N.Y. 1998), or where the employees' actions were a foreseeable, ordinary, and natural incident or attribute of their employment. See Riviello v. Waldron, 47 N.Y.2d 297, 418 N.Y.S.2d 300, 391 N.E.2d 1278 (1979); Helbig v. City of New York, 212 A.D.2d 506, 622 N.Y.S.2d 316 (2d Dep't 1995). [**25] The "employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected." Riviello, 47 N.Y.2d at 304. Moreover, so long as the act is foreseeable, Riviello provides that:


an employer [will not be] excused merely because his employees, acting in furtherance of his interests, exhibit human failings and perform negligently or otherwise than in an authorized manner. Instead, the test has come to be "whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions."


Id. at 302.
Where the element of general foreseeability exists, even intentional tort situations have been found to fall within the scope of employment. See Riviello, 47 N.Y.2d at 305. However, "an employer will not be held liable under this doctrine for actions which were not taken in furtherance of the employer's interests and which were undertaken by the employee for wholly personal motives." Galvini v. Nassau County Police Indemnification Review Bd., 242 A.D.2d 64, 68, 674 N.Y.S.2d 690 [**26] (2d Dep't 1998); see also, Davis v. City of New York, 226 A.D.2d 271, 641 N.Y.S.2d 275 (1st Dep't 1996) ("an employee's actions are not within the scope of employment unless the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business. Thus, where an employee's conduct is brought on by a matter wholly personal in nature, the source of which is not job related, his actions cannot be said to fall within the scope of his employment.").
In determining whether an employee's tortious acts have been committed within the scope of his or her employment, the court weighs the following factors: "the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated." Davis, 226 A.D.2d at 303. This determination is heavily dependent on factual considerations [**27] and is therefore ordinarily a question for the jury. See Rounds v. Delaware Lackawanna & Western R. R. Co., [*314] 64 NY 129, 137-38 (1876). However, where, as here, there is no conflicting evidence as to the essential facts, a court may make this determination as a matter of law. See Cepeda v. Coughlin, 128 A.D.2d 995, 513 N.Y.S.2d 528 (3d Dep't 1987).
In the case at bar, the court finds as a matter of law that Velazquez, Regnier and Pincus were acting within the scope of their employment and not for "wholly personal motives" when they violated Thomas Pizzuto's Eighth Amendment rights, and that the County of Nassau is therefore vicariously liable for these acts under the doctrine of respondeat superior.
1. Count XI: Velazquez and Regnier
Defendants Velazquez and Regnier's liability under the Eighth Amendment arises from their decision to use force against Pizzuto for the dual purpose of quieting him down and reprimanding him for his failure to obey an order. Velazquez and Regnier stated in their plea allocutions that they had initially anticipated silencing Pizzuto by yelling at him through the bars of his cell. However, as soon as they arrived [**28] at Pizzuto's cell, Pincus opened the cell door. As a result, Velazquez and Regnier entered Pizzuto's cell, and shouted at Pizzuto to shut up. When Pizzuto persisted in his yelling, the two officers beat him for approximately one minute, all the while ordering him to cease yelling.
Analyzing these acts under Riviello and its progeny, it is clear that Velazquez and Regnier were acting within the scope of their employment. First, there is an undisputed "connection between the time, place and occasion for the act," as Defendants were on duty within their assigned work area.
Second, Defendants were clearly "carrying out duties incumbent upon [them] in furthering [their] employer's business." Davis, 226 A.D.2d at 271. The record contains uncontraverted evidence that Defendants were charged with the duty of keeping order on the Observation Tier, and acted in furtherance of this responsibility when they beat Pizzuto. In this respect, both defendants testified that they agreed to confront Pizzuto in order to quiet him down. (Pl. Stmt, Ex. C, Ex. E.) Velazquez testified that he told Pizzuto to stop yelling when he entered Pizuto's cell, and only struck [**29] Pizzuto when it became clear that Pizzuto would continue his yelling. (Id., Ex. C.) Moreover, both Velazquez and Regnier testified that they continued telling Pizzuto to stop his yelling throughout the duration of his beating. (Id., Ex. C, Ex. E.) Pincus also testified that he dispatched Velazquez and Regnier to Pizzuto's cell for the dual purpose of quieting Pizzuto and reprimanding him for failing to follow instructions. (Id., Ex. D, at 64-65.)
These admissions were made both at the individual defendants' civil depositions and as part of their guilty pleas in the prior criminal proceedings. Judge Mishler found that the admissions were credible, and I find no evidence in the record to suggest otherwise. Indeed, Nassau County's claim that Velazquez and Regnier had personal motives for battering Pizzuto and therefore were not acting within the scope of their employment is wholly unsupported by the record. n1

n1 Because the record contains no evidence substantiating the claim that Velazquez and Regnier bore personal malice against Pizzuto, I find that Vargas v. Correa, 416 F. Supp. 266 (S.D.N.Y. 1976), which involved a wholly personal dispute over television viewing preferences, is inapposite.

[**30]
Riviello also counsels courts to consider "the history of the relationship between [*315] employer and employee as spelled out in actual practice" and "whether the act is one commonly done by such an employee." 47 N.Y.2d at 303. It is undisputed that the NCCC afforded the defendants significant discretion in controlling the behavior of difficult inmates and that the defendants commonly exercised this discretion through the use of limited force. Indeed, the defendant officers were trained and authorized to use physical force in furtherance of legitimate penalogical interests. (Pl. Stmt, Exs. K, I, J, L.) n2

n2 NCCC training materials specifically state that: "Sooner or later, a jail officer may have to use force to accomplish a legitimate correctional objective. No one disputes that force sometimes has to be used in jails ... correctional officers have a 'privilege' to use force in order to accomplish legitimate enforcement and correctional objectives. In jail, these objectives include: ... to prevent or stop an inmate disturbance ... to accomplish other legitimate purposes related to security, order or control." (Pl. Stmt, Ex. K.)

[**31]
I also find that it is eminently foreseeable that in the course of performing their duties, corrections officers may use excessive force to control a difficult inmate. This is particularly true where, as here, a cell door is unexpectedly opened and the officers, who are authorized to use physical force when necessary, come face to face with an inmate.
Finally, while officers Velazquez and Regnier may have departed from the normal method of silencing a difficult inmate, I find that their departure from NCCC regulations is not so substantial as to outweigh the other Riviello factors, especially where their acts were taken in a misguided attempt to further the NCCC's legitimate penalogical interest in maintaining order. See Riviello, 47 N.Y.2d at 302 ("The test has come to be 'whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions.'"); see also De Wald v. Seidenberg, 297 N.Y. 335, 79 N.E.2d 430 (1948) ("The master who puts the servant in a place of trust or responsibility, or commits to him the management of his business or the care of his property, is [**32] justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another.").
In making this finding, I note that NCCC policy and practice may very well have permitted a limited use of force in controlling Pizzuto's behavior. As set out above, NCCC training materials specifically state that correctional officers are authorized to use force "to accomplish ... legitimate purposes related to security, order or control." (Pl. Stmt, Ex. K.) Thus, the "extent of [Defendants'] departure from normal methods of performance" should be measured by considering the difference between the force that may have properly been used to silence Pizzuto and the excessive force that Defendants actually used against Pizzuto. If Defendants had intended to murder Thomas Pizzuto, their departure from normal procedure may well have been great enough to take their acts outside the scope of their employment. However, the evidence shows that Velazquez and Regnier did not immediately or [**33] even intentionally kill Pizzuto. Rather, they inflicted upon him a one-minute beating that had the tragic result, unbeknownst to anyone at the time, of lacerating Pizzuto's spleen. Such acts, while barbaric, do not represent such a great departure from the roughhewn reality of a correction officer's daily routine as to fall outside of the scope of Defendants' employment.
[*316] Accordingly, I find that the record contains overwhelming and uncontroverted evidence that Velazquez and Regnier were "doing their master's work," and doing it poorly, when they used physical force to silence Thomas Pizzuto and reprimand him for his failure to obey an order. As Defendants, after extensive discovery, have failed to provide even a shred of evidence to the contrary, I hold that the County of Nassau is, as a matter of law, vicariously liable for Velazquez and Regnier's battery of Thomas Pizzuto as to Count XI.
2. Count X: Pincus
Pincus' supervisory liability under Count X arose from his decision (1) to instruct Velazquez, Regnier and Bavaro to control Pizzuto's behavior, (2) to open the cell door for purposes of allowing the officers to enter Pizzuto's cell, and (3) to allow Velazquez and Regnier [**34] to continue beating Pizzuto once he believed that the two officers were using excessive force. n3

n3 While Pincus also failed to file an accident report and conduct a reasonable investigation into Pizzuto's beating -- two omissions that may have arisen from a personal interest in initiating a cover-up -- these failures were not essential to my finding that he was liable under Count X.

Pincus made these decisions while on duty and in furtherance of his responsibilities as a supervisor, which include maintaining order on his cell block, supervising subordinates, and protecting inmates from foreseeable risks of harm. Moreover, these decisions were foreseeable and do not represent such a great departure from normal methods of performance as to outweigh the other factors outlined in Riviello.
Accordingly, I find that the County of Nassau is vicariously liable for Pincus' supervisory liability as established with respect to Count X of Plaintiff's complaint.

IV. Conclusion
For the foregoing reasons, [**35] Plaintiff's motion for summary judgment is GRANTED on Count I against defendants Velazquez, Regnier, Bavaro and Bergen. Summary judgment is GRANTED against defendants Velazquez and Regnier with respect to Counts III and XI, against defendant Bavaro with respect to Count IV, against defendants Velazquez, Regnier and Bavaro with respect to Count VI, against defendant Pincus with respect to Counts VIII and X. In addition, I GRANT summary judgment against defendant County of Nassau on the issue of its vicarious liability for those acts taken in relation to Counts X and XI. Plaintiff's motion for summary judgment against defendant Pincus is DENIED with respect to Count VI.

SO ORDERED.

Dated: January 16, 2003
Nicholas G. Garaufis
United States District Judge

VIRGINIA PIZZUTO, Administratrix of the Estate of her husband THOMAS PIZZUTO, and on her own behalf; TOMMY PIZZUTO, by his mother and natural guardian VIRGINIA PIZZUTO; CAROL PIZZUTO; ROSARIO PIZZUTO; JOSEPH PIZZUTO; RUSSELL PIZZUTO; and ANTHONY PIZZUTO, Plaintiffs, v. COUNTY OF NASSAU; THE SHERIFF'S DEPARTMENT OF NASSAU COUNTY; individually and in their official capacity, Sheriff JOSEPH JABLONSKY; Under-Sheriff JEROME DONAHUE; Under-Sheriff PAUL SCHOENBERGER; THE NASSAU COUNTY CORRECTIONAL CENTER; individually and in their official capacity as Nassau County Correction Officers EDWARD VELAZQUEZ, PATRICK REGNIER, IVANO BAVARO, JOSEPH BERGEN, GARY PINCUS, RICHARD TRINO; ROBERT PETERSON individually and in their official capacity, JOHN DOES correction officers and non-uniformed employees of NASSAU COUNTY, THE SHERIFF'S DEPARTMENT OF NASSAU COUNTY, and/ or THE NASSAU COUNTY CORRECTIONAL CENTER, RICHARD ROES, supervisory officers, the identity and number of whom is presently unknown, Defendants.

CV 00-0148 (NGG)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

240 F. Supp. 2d 203; 2002 U.S. Dist.

November 19, 2002, Decided


DISPOSITION: [**1] Defendants' motion for summary judgment granted in part and denied in part.




COUNSEL: For VIRGINIA PIZZUTO, TOMMY PIZZUTO, CAROL PIZZUTO, ROSARIO PIZZUTO, JOSEPH PIZZUTO, RUSSELL PIZZUTO, ANTHONY PIZZUTO, plaintiffs: Peter J. Neufeld, Cochran Neufeld & Scheck, LLP, New York, NY.

For COUNTY OF NASSAU, SHERIFF'S DEPARTMENT OF NASSAU COUNTY, JOSEPH P JABLONSKY, JOSEPH JABLONSKY, NASSAU CTY CORR. FAC, NASSAU COUNTY CORRECTIONAL CENTER, defendants: Paul F. Millus, Snitow & Cunningham, LLP, New York, NY.

For COUNTY OF NASSAU, SHERIFF'S DEPARTMENT OF NASSAU COUNTY, JOSEPH P JABLONSKY, JOSEPH JABLONSKY, NASSAU CTY CORR. FAC, defendants: Paul F. Millus, Snitow, Kanfer, Holtzer & Millus, New York, NY.

For PATRICK REGNIER, defendant: Ernest Peace, Mineola, NY.

For RICHARD TIRINO, defendant: Alan J. Reardon, Carole A. Burns & Associates, Mineola, NY.

For NASSAU COUNTY CIVIL SERVICE EMPLOYEES ASSOCIATION LOCAL-830, defendant: [**2] Peter Monaghan, Bartlett, McDonough, Monaghan & Berk, Mineola, NY.

For SHERIFF OFFICER'S ASSOCIATION, MICHAEL ADAMS, SHERIFF OFFICER'S ASSOCIATION, defendants: Thomas A. Toscano, Thomas Toscano, P.C., Mineola, NY.

JUDGES: Nicholas G. Garaufis, United States District Judge.

OPINIONBY: Nicholas G. Garaufis

OPINION:
[*204] MEMORANDUM AND ORDER

GARAUFIS, United States District Judge.
Plaintiffs Virginia Pizzuto, Carol Pizzuto, Joseph Pizzuto, Russell Pizzuto, Tommy Pizzuto, Anthony Pizzuto and the estate of Rosario Pizzuto ("Plaintiffs") have brought eighteen claims under federal and state law against the above captioned Defendants. The claims arise out of the murder of Thomas Pizzuto by corrections officers of the Nassau County Correctional Center ("NCCC"). Defendants have moved pursuant to Fed. R. Civ. P. 56 to dismiss the following four claims: (1) Plaintiffs Carol Pizzuto and Rosario Pizzuto's claim for the violation of their Fourteenth Amendment right to the companionship and society of their, Thomas Pizzuto; (2) Plaintiffs Carol Pizzuto and Rosario Pizzuto's claim for the wrongful death of Thomas Pizzuto; (3) Plaintiffs' First Amendment claim asserting a denial of access to the courts; [**3] and (4) Plaintiffs' claim against individual corrections officers for intentional/ reckless infliction of emotional distress.
For the reasons set forth below, Defendants' motion for summary judgment is granted in part and denied in part.
I. FACTUAL BACKGROUND
For purposes of this motion for summary judgment, Plaintiffs' allegations are accepted as true and any reasonable inferences are drawn in favor of Plaintiffs.
Prior to his murder in January 1999, Thomas Pizzuto lived with his wife and son in the ground-floor apartment of his parents' house in Nassau County. (Declaration in Opposition to The Nassau County Defendants' Motion For Summary Judgment, ("Plaintiffs' Decl.") Ex. B at 10.) At that time, Pizzuto was 38 years old and enrolled in drug treatment program that involved the lawful use of methadone. [*205]
On January 7, 1999, Pizzuto was sentenced to ninety days in jail on the misdemeanor charge of driving under the influence of methadone. (Second Am. Compl. P 16.) Later that day, Pizzuto was incarcerated at the NCCC and assigned to a one-person cell in the NCCC's Observation Tier. Pizzuto's assignment to this unit was based on his status as an inmate receiving methadone treatment. [**4] (Id. PP 17, 18.) During the morning of January 8, Pizzuto repeatedly complained to correction officers that he needed his court-ordered methadone treatment. (P 19.) After a heated exchange between Pizzuto and one guard, Defendant corrections officers ordered all Observation Tier inmates to return to their cells. All of the cells except Pizzuto's were then locked. (Id. PP 21, 22, 23.) Moments later, three corrections officers, at the direction of a supervisor, proceeded to Pizzuto's cell with the intention of using force to control his behavior. While one officer stood guard outside, two others donned rubber surgical gloves and entered Pizzuto's cell. (Id. P 24.) The officers ordered Pizzuto to put his hands down and thereafter beat him for several minutes, repeatedly punching and kicking him about the face, torso, and legs. (Id.) The supervisor later testified that during the beating he heard thuds, banging, crying and moaning from Pizzuto's cell, and felt vibrations from the walls. Once the officers had beaten Pizzuto into submission, they left him lying in his cell with extensive visible injuries, including a swollen and blackened left eye, a swollen left cheek, abrasions [**5] to his left cheek, bruises and contusions on his chest, shoulder, torso and back, and a contusion to his leg. In addition, it was later discovered that his spleen was lacerated by the force of the punches or kicks to his torso. (Id. PP 30, 31.) The officers reported back to their supervisor that no "injury report" or "use of force report" was needed. (Id. P 27.)
Hours after the beating, another supervisor learned of the incident and took the first of many affirmative steps that were part of Defendants' effort to cover up Pizzuto's beating. The supervisor prepared a report falsely claiming that Pizzuto had slipped and fallen in the shower and sent Pizzuto to the Medical Unit. (Id. PP 33, 34.) The only treatment Pizzuto received, despite his extensive visible injuries, was a bag of ice. (Notice of Motion for Partial Summary Judgment Against Defendants Velazquez, Regnier, Bavaro, Bergen, Pincus and Nassau County, P 26.) Pizzuto was returned to his cell later that evening. (Pl. Compl. P 34.)
The circumstances surrounding the NCCC's alleged cover-up and the family's attempts to contact Thomas Pizzuto from January 8th to January 10th remain murky, as the pleadings contain only general [**6] and contradictory allegations. During that two day period, Plaintiffs claim that the NCCC prevented them from contacting Thomas Pizzuto and learning of his beating. (Id. P 35.) However, their pleadings do not describe how they attempted to attain access to Thomas Pizzuto, and their deposition testimony suggests that no such attempts were made. (Plaintiffs' Decl., Ex. A at 24.)
On January 11th, Thomas Pizzuto collapsed in his cell. (Second Am. Compl. P 36.) As preparations were being made to transport him to the Nassau County Medical Center ("NCMC"), Carol Pizzuto (Thomas Pizzuto's mother) arrived at the NCCC to visit her son. Corrections officers denied her access to Thomas Pizzuto, saying that he was seeing a doctor. By this time, Carol Pizzuto became extremely worried. She had already passed the last two days anxiously expecting a call from her son that never came, and news that Thomas Pizzuto was seeing a doctor only served to confirm her sense that something [*206] was amiss. (Plaintiffs' Decl., Ex. A at 14.) At her deposition, Carol Pizzuto stated that the officers provided her no other information regarding Thomas Pizzuto's condition. She failed, however, to state whether she inquired [**7] into his condition.
While leaving the NCCC, Carol Pizzuto overheard a corrections officer calling for an ambulance. (Plaintiffs' Decl., Ex. E at 3.) Suspecting that the ambulance was for her son, Carol Pizzuto drove to the NCMC and learned from a NCMC nurse that her son had been taken to the emergency room. (Id.) Carol's second son Anthony Pizzuto arrived at the hospital shortly thereafter. With his mother waiting in the car in the hospital parking lot, Anthony Pizzuto went to inquire into his brother's condition. (Id., Ex. E at 4.) However, before he could reach his brother, Anthony Pizzuto was stopped by corrections officers and ordered to leave. (Id.) Anthony Pizzuto protested that he had the right to remain in the emergency room, but finally left after the officers threatened to have him arrested. (Id.) Moments after this encounter, Anthony Pizzuto met a friend who worked as an emergency room nurse. The friend told him that the NCCC claimed Thomas Pizzuto had slipped and fallen in the shower, but that in her opinion, Thomas had been severely beaten. (Id., Ex. D at 15.)
As Anthony Pizzuto left the hospital, three NCCC corrections officers followed him into [**8] the parking lot, stepped behind his car, and refused to let him pull out. (Id., Ex. D at 16.) With his mother becoming increasingly upset and fearful for her safety, Anthony Pizzuto stepped out of his car and requested that the officers permit him to leave. (Id.) The officers rebuffed Pizzuto's request and instead aggressively interrogated Anthony Pizzuto, demanding that he reveal how he found out about his brother and what he knew of Thomas Pizzuto's condition. (Id. Ex. D at 17.) The officers finally desisted when Anthony Pizzuto, fearful for his safety, threatened to call 911. (Id.) In sum, Plaintiffs Carol Pizzuto and Anthony Pizzuto claim that NCCC officials kept Anthony Pizzuto from inquiring into Thomas Pizzuto's condition by ordering him to leave the emergency room and intentionally intimidated both Anthony and Carol in the parking lot in retaliation for making these initial inquiries. Plaintiffs claim that these acts, in combination with their suspicion that Thomas had been beaten by NCCC guards and was being held in isolation by from his family, led both Anthony and Carol to a point of extreme anxiety.
During the period following Thomas Pizzuto's admission to [**9] the NCMC, Plaintiffs claim that the NCCC denied family members information about Thomas' condition and continuously forbade Plaintiffs from contacting him. (Second Am. Compl. PP 11.) Plaintiffs do not state whether these denials came as part of a cover-up or were pursuant to procedure. It appears the family was allowed one visit of 20 minutes in the intensive care unit ("ICU") of NCMC on January 11 and another visit of roughly the same duration a day later. (Plaintiffs' Decl., Ex. A at 26.)
During the first ICU visit, Plaintiffs claim that a NCCC corrections officer hovered over Thomas Pizzuto and his family in order to intimidate Thomas from disclosing the details of his beating. (Id., Ex. A at 20, 21, 22, 23.) Plaintiffs note that the guard's close watch over Thomas Pizzuto was unnecessary as Thomas was incapacitated due to his injuries and handcuffed to the bed. (Id., Ex. A at 22.) They further state that Thomas Pizzuto clearly did feel intimidated by the guard's presence and consequently felt constrained from revealing too much about his beating in prison. (Id., Ex. A at 21, 22.) The one [*207] moment-approximately one minute, when the guard did walk away, Thomas Pizzuto [**10] uttered to his parents that the guards had used a chain and that he could still taste the chain in his mouth. (Id., Ex. A at 21-23.) He also pointed to a mark on his chest where the guards had hit him. (Id.)
On January 13, Thomas Pizzuto died of the injuries he had sustained at the hands of NCCC corrections officers. (Second Am. Compl. P 11.) The County Deputy Medical Examiner attributed the death to a ruptured spleen and declared his death a homicide. (Id.) When word of Thomas Pizzuto's death reached the NCCC, corrections officials stepped up their effort to cover up the cause of his death. (Id. PP 11, 12.) Corrections officers and supervisors submitted accident reports that falsely claimed that Pizzuto had acknowledged that his injuries were sustained when he slipped and fell in the shower. They further instructed their co-workers to lie about the circumstances surrounding Pizzuto's murder and suppressed the results of an investigation that recommended disciplinary sanctions against an officer who had taken part in the beating. (Id. PP 10, 11, 12.) According to Plaintiffs' complaint, the officer was subsequently rewarded with favorable assignments. (Id. P [**11] 13.)
Plaintiffs also allege that the upper levels of the NCCC management participated in this conspiracy by pursuing a "policy, custom and practice of suppressing confessions and admissions of criminal conduct committed by corrections officers, and protecting officers who engage in excessive force from receiving meaningful sanctions." (Id. P 14.)
At their depositions, Plaintiffs alleged that the defendant corrections officers intensified their harassment of the Pizzuto family once criminal proceedings began against five corrections officers for Pizzuto's murder. On the day the first officer entered his guilty plea, the family arrived in the parking lot of the Federal Courthouse to find 200-250 hostile corrections officers waiting for them. (Plaintiffs' Decl., Ex. D at 24.) They were forced to walk through a gauntlet of corrections officers, and while doing so, were pushed, shoved, insulted, and threatened with bodily harm. (Id.; Plaintiffs' Decl., Ex. C at 28.) In particular, uniformed and un-uniformed corrections officers threatened the family with clenched fists, with some yelling, "when you get in fucking jail, this is what you are going to get," (Id., Ex. D at 25), [**12] and "you could be next." (Id., Ex. C at 27.) The corrections officers also screamed at Carol Pizzuto and her wheel-chair bound husband, calling them "bitch", "whore", "cunt", "mother fuckers," (Id., Ex. D at 25). Officers further attempted to block access to the court by crowding in front of the doors, and continued intimidating the family once the court proceedings began. (Id., Ex. E at 5.) The intimidating nature of the guards' conduct during proceedings grew so outrageous that the presiding judge on several occasions dressed down the officers and threatened to clear the court room. (Id., Ex. D at 25.) Once the guilty plea was taken, the correction officers became even more unruly, with roving bands of officers pushing the few police on hand, punching reporters and further harassing the family. (Id.)
Family members reported fearing for their lives, and suffering depression, anxiety, sleeplessness, weight loss and other manifestations of emotional distress as a result of this experience. (Id., Ex. A, B, C, D, E.) At subsequent criminal proceedings, the conduct of the corrections officers remained menacing, although less so than at the first hearing.
Following [**13] the convictions of five corrections officers for various roles relating to the murder of Thomas Pizzuto, the family filed this civil action for damages on their [*208] own behalf and on behalf of Thomas Pizzuto.
II. DISCUSSION
Plaintiffs have brought eighteen federal and state law claims against defendants arising out of the murder of Thomas Pizzuto. Defendants have moved to dismiss the following four claims: (1) Plaintiffs Carol Pizzuto and Rosario Pizzuto's claim for the violation of their Fourteenth Amendment Right to companionship and society of their son, Thomas Pizzuto; (2) Plaintiffs Carol Pizzuto and Rosario Pizzuto's claim for the wrongful death of their son; (3) Plaintiffs' First Amendment claim asserting a denial of access to the courts; and (4) Plaintiffs' claim against individual corrections officers for intentional/ reckless infliction of emotional distress.
For the reasons set forth below, Defendants' motion is granted in part and denied in part.

A. Summary Judgment
In ruling on a motion for summary judgment, "the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986). [**14] To defeat summary judgment, the non-moving party must present evidence that would allow "a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. See also Anderson, 477 U.S. at 248 (genuine issue of material fact exists if "a reasonable jury could return a verdict for the non-moving party").

B. Familial Privacy Claim
To prevail in an action brought under 42 U.S.C. § 1983, a plaintiff must show that he or she was deprived of a right, privilege, or immunity secured by the Constitution or laws of the United States. Plaintiffs Carol Pizzuto and Rosario Pizzuto claim that Defendants deprived them of their Constitutional right to their son's companionship, which they claim is protected under the Fourteenth Amendment as an element of personal liberty. n1, n2 Defendants have moved for summary judgment, arguing that a parent has no constitutionally-protected liberty interest in preserving an intimate [**15] family relationship [*209] with an independent adult child who lives separately from his parents. I agree with Defendants and therefore grant Defendants' motion to dismiss Plaintiffs' Fourteenth Amendment claim.

n1 Plaintiffs' complaint also alleges that Defendants' conduct violated Joseph, Russell, and Anthony Pizzuto's liberty interest in the companionship of their brother. However, Plaintiffs have waived this allegation in their reply to Defendants' motion for summary judgment. (Pl. Decl., at 4, FN 1.) Moreover, even absent this waiver, I would dismiss these claims for the same reasons I dismiss Carol and Rosario Pizzuto's familial association claim.
n2 In addition to their Fourteenth Amendment familial association claim, Plaintiffs also assert that Defendants have violated their right to familial association under the First Amendment. However, because the freedom to associate guaranteed by the First Amendment protects associational interests related to speech and petition, and because those associational interests are not implicated in this case, I find that Plaintiffs' claim must be examined under the Fourteenth Amendment, rather than the First Amendment. See Thompson v. Ashe, 250 F.3d 399 (6th Cir. 2001).
Plaintiffs also bring their familial association claim under the Fourth Amendment, Fifth Amendment, Eighth Amendment and Ninth Amendment. However, Plaintiffs have cited no case and the Court's research has uncovered none that suggests that a familial association claim may be brought under these amendments in the circumstances of this case. Plaintiffs are therefore limited to bringing their claim under the Fourteenth Amendment.

[**16]
Analysis
In Roberts v. U.S. Jaycees, 468 U.S. 609, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984), the United States Supreme Court explained that there are two facets to the constitutionally protected freedom of association-one concerned with the exercise of First Amendment Rights, and the other concerned with the freedom of "intimate association" under the Fourteenth Amendment's Due Process Clause.
The concept of familial privacy has developed largely under the Court's Fourteenth Amendment substantive due process jurisprudence. The thrust of this jurisprudence recognizes that family members have a constitutionally protected right to make certain types of choices free from government interference. See Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978) (noting "it is now firmly established that freedom of personal choice in matters of ... family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.") (Quotations omitted). The choices entitled to constitutional protection fall into five general categories. The first three categories involve choices concerning procreation, see Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965), [**17] child rearing, see Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1973), and marriage, see Zablocki v. Redhail, 434 U.S. 374, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1978). The fourth category centers upon the right to live together as a family, or more specifically, the family's right to decide matters of child custody and family living arrangements. See Moore v. City of East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (finding unconstitutional an ordinance that criminalized grandmother's decision to live with her son's child and nephew); Santosky II v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982) (holding that parents have a fundamental liberty interest in retaining custody of their children, even in the context of parental custody termination proceedings); Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972) (holding unwed father has fundamental liberty interest in attaining custody of son, in context of dependency proceeding); Quilloin, 434 U.S. 246, 54 L. Ed. 2d 511, 98 S. Ct. 549. In addition to these Supreme [**18] Court cases, numerous Courts of Appeal have also recognized a fifth category of family privacy: the right to be free from government attempts to undermine or interfere with family relationships. See Patel v. Searles, 305 F.3d 130 (2d Cir. 2002) (finding violation of familial privacy where in the context of a murder investigation, police officers intended to turn plaintiff's family against him by sending family members fictitious confession letters, and defamatory memorandum naming plaintiff as a suspect); Adler v. Pataki, 185 F.3d 35 (2d Cir. 1999) (upholding familial association claim where plaintiff was fired because of his wife's employment discrimination lawsuit against state); Adkins v. Board of Education, 982 F.2d 952 (6th Cir. 1993) (upholding familial association claim where plaintiff was denied continued employment because school superintendent's dislike of employee's husband).
Plaintiffs Carol Pizzuto and Rosario Pizzuto's Fourteenth Amendment claim rests upon the oft-repeated mantra that a parent has a constitutionally protected liberty interest in "the companionship, care, custody, and management of his or her children [**19] ...." [*210] See Troxel v. Granville, 530 U.S. 57, 65, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000); M.L.B. v. S.L.J., 519 U.S. 102, 118, 136 L. Ed. 2d 473, 117 S. Ct. 555 (1996); Santosky II, 455 U.S. at 758; Lassiter v. Department of Social Services of Durham County, N. C., 452 U.S. 18, 27, 68 L. Ed. 2d 640, 101 S. Ct. 2153 (1981); Moore, 431 U.S. at 501; Fiallo v. Bell, 430 U.S. 787, 810, 52 L. Ed. 2d 50, 97 S. Ct. 1473 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636, 652, 43 L. Ed. 2d 514, 95 S. Ct. 1225 (1975); Stanley, 405 U.S. at 651. It is notable that the Court has invoked this principle only where parents or guardians have been seeking to protect their right to decide matters of child custody and family living arrangements. See Troxel, 530 U.S. at 65; M.L.B., 519 U.S. at 118; Rivera v. Minnich, 483 U.S. 574, 97 L. Ed. 2d 473, 107 S. Ct. 3001 (1987); Santosky II, 455 U.S. at 758; Lassiter, 452 U.S. at 27; Moore, 431 U.S. at 501; Fiallo, 430 U.S. at 810; [**20] Weinberger, 420 U.S. at 652; Stanley, 405 U.S. at 651.
The Court of Appeals for the Second Circuit has likewise invoked the right to companionship only where custodial relations are involved. See Duchesne v. Sugarman, 566 F.2d 817 (2nd Cir. 1977). Duchesne involved an action against a municipal child welfare bureau that had removed plaintiff's children from her home during an emergency and thereafter held the children without obtaining judicial ratification of the removal. The court equated the right to companionship to the right to remain together as a family free from superceding government decisions, noting:


"Here we are concerned with the most essential and basic aspect of familial privacy the right of the family to remain together without the coercive interference of the awesome power of the state. This right ... is the interest of the parent in the companionship, care custody, and management of his or her children ..." Id. at 825.
Plaintiffs assert that the right to companionship exists independent of the right to decide matters of child custody and family living arrangements. In support of this [**21] theory, they cite Lee v. the State of New York Department of Correctional Services, 1999 U.S. Dist. LEXIS 13214, 1999 WL 673339 (S.D.N.Y. 1999) and Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001). However, neither of these cases are pertinent to the issue at hand, as both involved the arrest and incarceration of a mentally incapacitated adult man who had been judicially remanded to the custody and care of his mother, with whom he lived. n3 The other district court cases cited by Plaintiffs are likewise inapposite, as each of these cases involves disruption or preemption of custodial relationships between parents and minor children. See Green v. City of New York, 675 F. Supp. 110, 114 (S.D.N.Y. 1987) (children whose father was shot by police had claim for [*211] wrongful deprivation of parenthood even though state action was not specifically intended to supercede family's decision to live together); Dusenbury v. City of New York, No. 97 Civ. 5215, 1999 U.S. Dist. LEXIS 5039, 1999 WL 199072, (S.D.N.Y. April 9, 1999) (children of father who was incapacitated by wrongful use of excessive force had claim for temporary deprivation of parenthood even though state action was merely [**22] reckless and not intentionally aimed at interfering with parent child relationship); Fodelmesi v. Schepperly, No. 87 Civ. 6762, 1991 U.S. Dist. LEXIS 8517, 1991 WL 120311, (S.D.N.Y. June 25, 1991) (denying motion for summary judgment regarding parents' right to companionship of son with a 60 I.Q. who needed special care); Thomas v. City of New York, 814 F. Supp. 1139 (E.D.N.Y. 1993) (recognizing that physical and emotional abuse of children in foster care system may be enough to sustain mother's a cause of action for disruption of familial affairs).

n3 In Lee v. the State of New York and Lee v. City of Los Angeles, plaintiff claimed that her Fourteenth Amendment Right to companionship with her son was violated when due to a mistake of identity the Los Angeles police arrested and extradited her son to New York. He was subsequently incarcerated in New York for two years before authorities remedied their mistake. The Southern District of New York and the Court of Appeals for the Ninth Circuit both held that the actions taken by the city and state, respectively, violated plaintiff's Due Process right to companionship with her son. Critical to those decisions is the fact that the son had been declared mentally ill and had been remanded to the custody of plaintiff. In essence, both cases involved state interference in a mother's constitutional right to remain together with her son.

[**23]
Plaintiffs also cite Bell v. City of Milwaukee, 746 F.2d. 1205 (7th Cir. 1984), where the Court of Appeals for the Seventh Circuit expressly held that parents retain a constitutionally protected interest in the society and companionship of independent adult children, even where the child has already left the family home. In Bell, the court found that the City had violated plaintiff's Fourteenth Amendment Right to familial privacy when it wrongfully shot and killed her 23-year old son. The court explained that "the Supreme Court's decisions protect more than the custody dimension of the parent-child relationship. The protected relationship includes the parent's "interest in the companionship, care, custody, and management of the child." Id. at 1245 (quoting Stanley, 405 U.S. at 651). The Seventh Circuit's decision rested in part on the fact that the son was single, had no children, and had not yet become a part of another family unit. Indeed, its analysis of the victim's family status concluded by finding that "his father's family was his immediate family." Id. 746 F.2d at 1245. Although the question is a close one, this finding alone [**24] is enough to distinguish Bell from the instant case. By January 1999, Thomas had already married and started his own family. He had lived apart from his parents for approximately six years and only moved into the ground-floor apartment of his parents' home three months before his death. n4 Moreover, as the forgoing suggests, I am not persuaded that the formula concerning "companionship, care custody and management"-first articulated in Stanley, should yield the result reached by the Bell court.

n4 On the other hand, Thomas did not pay rent to his mother, and although he lived in a self-contained apartment, it appears relations with his parents and brother Joseph, all of whom lived upstairs, were frequent and close.

More persuasive than Bell is the First Circuit's decision in Ortiz v. Burgos, 807 F.2d 6 (First Cir. 1986) and the D.C. Circuit's decision in Butera v. District of Columbia, 344 U.S. App. D.C. 265, 235 F.3d 637 (D.C. 2001). In Ortiz, Jose Valdivieso Ortiz was beaten to [**25] death by guards in a Regional Detention Center in Puerto Rico. Ortiz's stepfather and siblings brought an action under Section 1983 claiming the guards violated their Fourteenth Amendment right to companionship of their adult son and brother. The court rejected this claim, reasoning that a parent's right to companionship of an adult child is only violated by acts that directly interfere with the parent-child relationship. The court stated:


"substantive due process cases do not hold that family relationships are, in the abstract, protected against all state encroachments, direct and indirect, but only that the state may not interfere with an individual's right to choose how [*212] to conduct his or her family affairs. The emphasis of the cases on choice suggests that the right is one of preemption; rather than an absolute right to a certain family relationship, family members have the right, when confronted with the state's attempt to make choices for them, to choose for themselves." Id. at 8.
In Butera, plaintiff brought a similar claim against the city police department for the negligent causation of her 31-year old son's death. The D.C. Circuit dismissed the claim, [**26] and in so doing, rejected the rationale used by the Seventh Circuit in Bell. It noted that Bell relied on Supreme Court cases that "focused on securing the rights of parents to have custody of and to raise their minor children," and concluded that there was "nothing in Supreme Court case law to indicate an intention to extend these concerns in support of a constitutional liberty interest in a parent's relationship with her adult son." Butera, 235 F.3d at 284.
I agree with the First Circuit and D.C. Circuit's analysis of the Supreme Court's familial privacy jurisprudence, and therefore conclude that the precedent establishing constitutional protection for various aspects of family life falls short of establishing that Plaintiffs Carol Pizzuto and Rosario Pizzuto have a liberty interest in the companionship of their son in the circumstances of this case.
Furthermore, I reject Plaintiffs' contention that the Second Circuit's decision in Patel v. Searles, 305 F.3d 130, dictates a contrary result. As stated above, Patel falls within that category of cases where government agents take actions intended to undermine or interfere with family [**27] relationships. In Patel, plaintiff claimed his right to familial association was violated by police officers who, in the context of a murder investigation, set out to turn his family against him by sending family members fictitious confession letters and defamatory memorandum. In considering plaintiff's claim, the District Court judge assumed, without deciding, that plaintiff could only succeed with his claim if he demonstrated that the officers "intended their conduct to affect his right to intimate association." Patel v. Searles, 2000 U.S. Dist. LEXIS 17665, 2000 WL 1731338, *2 (D.Conn. 2000). On appeal, the Court of Appeals indicated that it was unnecessary to decide this point of law, as plaintiff had alleged facts sufficient to prove that the officers' conduct was intended to undermine plaintiff's relationship with his family. See Patel v. Searles, 305 F.3d at 137. The court added, however, that "this Circuit has never held that a challenged action must be directed at a protected relationship for it to infringe on the right to intimate association." Patel v. Searles, 305 F.3d at 137. In support of this statement, the court cited Adler, 185 F.3d 35 [**28] (upholding claim that plaintiff was fired because of his wife's employment discrimination lawsuit against state, in violation of his First Amendment right to intimate association), and Adkins, 982 F.2d 952 (upholding claim that denial of continued employment because school superintendent's dislike of employee's husband violated her First Amendment right of intimate association).
Plaintiffs' assumption that these dicta in Patel control the instant case is misplaced. First, it appears that the Patel court, in making this statement, merely intended to suggest that the issue of intent had not yet been decided in the context of Fourteenth Amendment familial association claims. Indeed, although the Adler and Adkins courts sustained familial association claims in the absence of government intent to affect a familial relationship, both cases involved familial association claims arising under the First Amendment, which implicate different considerations than the Fourteenth Amendment claim before this [*213] Court. See Thompson v. Ashe, 250 F.3d 399 406-407 (holding that the First Amendment only protects associational interests related to speech and [**29] petition, and that petitioner's familial association challenge to a public housing development's no-trespass policy must therefore be examined under the substantive due process component of the Fourteenth Amendment, rather than the "freedom of association" component of the First Amendment). Moreover, the challenged conduct in Patel involved acts that directly injured, rather than collaterally impacted, plaintiff's relationship with his family.
In sum, I find that Patel represents a category of cases that involves intentional and direct government interference with family relationships. As there is no evidence that the Defendants in this case took acts that purposely and directly affected Plaintiffs' relationship with Thomas Pizzuto, Plaintiffs cannot cite Patel to support their claim.

C. Access to the Courts Claim
Plaintiffs claim that they were deprived of their "First Amendment right to have access to and seek redress in the courts." (Am. Compl. P 86.) Defendants have moved to dismiss this claim, arguing that Plaintiffs have failed to show any official conduct that injured their ability to bring suit. Although I believe the cover-up alleged by Plaintiffs [**30] may have injured Plaintiffs' ability to bring their legal claim, I nonetheless grant Defendants' motion for the following reasons.
Analysis
The Supreme Court has recognized two types of denial-of-access claims. See Christopher v. Harbury, 536 U.S. 403, 122 S. Ct. 2179, 2185, 153 L. Ed. 2d 413 (2002). One type aims to eliminate "systemic official action [that] frustrates a plaintiff or plaintiff class in preparing and filing" ongoing or future suits. See id. 122 S. Ct. at 2185. The second type is designed to compensate a plaintiff for wrongful official conduct that led the plaintiff to miss an opportunity to bring suit. See id. 122 S. Ct. at 2186 In either case, "the very point of recognizing any access claim is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong ... it follows ... [that] the complaint must identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet to be brought." Id. 122 S. Ct. at 2186-2187.
Here, Plaintiffs have alleged that Defendants engaged in an extensive cover-up immediately after the beating of Thomas Pizzuto and that this cover-up thwarted [**31] a full investigation of the incident while Pizzuto, a potentially valuable witness, was alive. While these allegations certainly raise the inference that Defendants injured Plaintiffs' ability to gather evidence, they do not support a cause of action under the First Amendment. For while despicable, the NCCC's conduct neither constitutes an ongoing obstacle to Plaintiffs' effort to pursue their action against the NCCC nor did it cause Plaintiffs to miss an opportunity to bring a suit. I therefore grant Defendants' motion to dismiss Plaintiffs' First Amendment claim.

D. Wrongful Death Claim
Under New York's Estates, Powers, and Trusts Law, a cause of action to recover damages for wrongful death may only be brought by the distributees of the decedent. See N.Y. Est. Powers & Trusts Law § 5-4.4, subd. [a] (McKinney 1998); See also DeLuca v. Gallo, 287 A.D.2d 222, 735 N.Y.S.2d 596, 599 (2d Dept. 2001). New York law provides that where a decedent dies intestate and is survived by a spouse and issue, his spouse and issue are the sole distributees of the estate. See N.Y. Est. Powers & Trusts Law § 4-1.1(a)(1) [*214] (McKinney 1998). Because Plaintiffs Carol [**32] Pizzuto and Rosario Pizzuto are not distributees of their son's estate, they are not entitled to recover damages for the wrongful death of their son. Accordingly, I grant Defendants' motion for summary judgment as to Plaintiffs Carol Pizzuto and Rosario Pizzuto's wrongful death claim.

E. Intentional Infliction of Emotional Distress Claim
Plaintiffs allege that the actions of individual Defendant corrections officers constitute the tort of intentional or reckless infliction of emotional distress. The elements of a claim for intentional or reckless infliction of emotional distress under New York law are:


(1) extreme and outrageous conduct;

(2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress;

(3) a causal connection between the conduct and the injury; and

(4) severe emotional distress.
Dana v. Oak Park Marina, 230 A.D.2d 204, at 209, 660 N.Y.S.2d 906 (N.Y.A.D. 1997).
In order to satisfy the first element, the alleged conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in [**33] a civilized [society]." Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86 (1983).
Plaintiffs allege that the Defendants engaged in a byzantine campaign of obfuscation and harassment as they held Plaintiffs' dying son and brother in isolation from family members, denying them information about or access to Thomas Pizzuto in the days immediately following his beating. They further describe in harrowing detail the conduct of corrections officers who jeered, cursed, threatened and assaulted the Pizzuto family as they attempted to attend the criminal trial of their son's murderer. Although I agree with Defendants that Plaintiffs' pleadings and deposition testimony provide a less than wholly focused picture of the alleged conspiracy to deny family members access to Thomas Pizzuto, I nonetheless find that a reasonable jury may find that Plaintiffs' allegations, if true, are "extreme" and "outrageous." This finding rests in large part on the deliberate acts of intimidation Defendant corrections officers undertook at the hospital and the federal courthouse in harassing the Pizzuto family. These acts assume a kafkaesque quality when [**34] viewed within the context of Defendants' beating of Thomas Pizzuto, Defendants' alleged cover up, and their alleged practice of denying the Pizzuto family information and access to Thomas Pizzuto. Indeed, it is precisely the fact that Defendants' conduct was taken with the authority and power of the state that makes it particularly vulnerable to a claim for infliction of emotional distress.
Defendants assert that the State of New York has adopted an unwelcoming attitude toward claims for intentional infliction of emotional distress. However, Defendants' papers refer only to cases involving First Amendment issues, Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 612 N.E.2d 699, 596 N.Y.S.2d 350 (N.Y. 1993), fights between neighbors, Seltzer v. Bayer, 272 A.D.2d 263, 709 N.Y.S.2d 21 (N.Y.A.D. 2000), employment disputes, Perks v. Town of Huntington, 96 F. Supp.2d 222 (E.D.N.Y. 2000) and other cases that involved conduct less grievous than the acts at issue here. New York courts' reluctance to sustain the claims in such cases suggests more about the nature of the judiciary's supervision of the private market place, its attitude toward the press and its approach [**35] to dysfunctional friendships, than it does about emotional distress claims. Indeed, the intense searching [*215] courts routinely bring to emotional distress claims reflects the wide leeway courts have traditionally afforded to private individuals in these contexts. Certain amounts of strain and conflict are to be expected in work place and neighborhood relations, and courts have as a consequence held plaintiffs to a high bar in alleging facts sufficient to sustain an emotional distress claim. However, these cases are not applicable where the context is not the free market of labor relations or the exercise of press freedom, but rather a state correctional system's practice of concealing the premeditated abuse of inmates and victimizing inmates' families. Accordingly, Defendants' motion to dismiss Plaintiffs' emotional distress claim is denied.

F. Conclusion
For the aforementioned reasons, Carol Pizzuto and Rosario Pizzuto's Fourteenth Amendment claim and wrongful death claim are DISMISSED. I also DISMISS Plaintiffs' First Amendment claim and DENY Defendants' motion to dismiss Plaintiffs' claim for intentional/ reckless infliction of emotional distress.

SO ORDERED.
Nicholas [**36] G. Garaufis
United States District Judge

Dated: November 19, 2002