Gilot v. Greyhound

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
Farrah Gilot,
Plaintiff,
v. 	5:26-CV-152
(BKS/MJK)
St. Joseph Hospital,
Defendant.
__________________________________________________________________
Farrah Gilot, Plaintiff, pro se
Mitchell J. Katz, United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
I. 	Introduction
Gilot commenced this action on December 15, 2025 by filing a
Complaint against Greyhound Lines, Inc. (“Greyhound”) in the United
States District Court for the Southern District of New York. (Dkt. 1).
Gilot also filed an application to proceed in forma pauperis. (Dkt. 2)
(“IFP Application”). On December 19, 2025, Gilot filed an Amended
Complaint naming St. Joseph’s Hospital as a Defendant and
terminating Greyhound as a party. (Dkt. 4).1 On January 29, 2026,
1 On January 2, 2026, Gilot and Greyhound, through its attorney, entered a
Stipulation of Withdrawal Discontinuance With Prejudice. (Dkt. 5-1).
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United States District Judge Pamela K. Chen directed the Clerk of
Court to “correct the caption to reflect St. Joseph’s Hospital as the
current and only defendant in this matter, and transfer this action to
the United States District Court for the Northern District of New York.”
(Dkt. 7, at pgs. 2-3). On January 29, 2026, the Clerk of Court for the
United States District for the Southern District of New York
transferred this case to the United States District Court for the
Northern District of New York. On February 2, 2006, Chief United
States District Judge Brendan K. Sannes deemed this action related to
5:25-CV-1801 (Dkt. 10) which Gilot commenced on December 15, 2025
(5:25-CV-1801, Dkt. 1 in). Also on February 2, 2026, Gilot filed a Notice
of Voluntary Dismissal as to action 5:25-CV-1801. (5:25-CV-1801, Dkt.
7) The Clerk of Court for the United States District Court for the
Northern District of New York sent the Amended Complaint and IFP
Application to the Court for review.
I. 	IFP Application
Gilot declares in her IFP application that he is unable to pay the
filing fee. (Dkt. 2). After reviewing Gilot’s application, this Court finds
that she is financially eligible for IFP status.
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In addition to determining whether a plaintiff meets the financial
criteria to proceed IFP, the court must also consider the sufficiency of
the allegations set forth in the complaint. See 28 U.S.C. § 1915
(e)(2)(B)(i)-(iii). Courts shall dismiss a case, at any time, if they
determine that the action is (i) frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief. Id.
When determining whether an action is frivolous, a court must
consider whether the complaint lacks an arguable basis in law or in
fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on
other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28
U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent
abuses of court process and discourage the waste of judicial resources.
See Neitzke, 490 U.S. at 327; see also Harkins v. Eldredge, 505 F.2d 802,
804 (8th Cir. 1974). Courts have a duty to show liberality toward pro se
litigants and must use extreme caution when ordering sua sponte
dismissal of a pro se complaint before the adverse party has been served
and has had an opportunity to respond. See Fitzgerald v. First E.
Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000). But courts
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must still determine that a claim is not frivolous before permitting a
plaintiff to proceed. See id. (finding that a district court may dismiss a
frivolous complaint sua sponte even when the plaintiff has paid the
filing fee).
To survive dismissal for failure to state a claim, a complaint must
contain sufficient factual matter, accepted as true, to state a claim that
is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp.,
550 U.S. at 555).
The Court will now consider the sufficiency of Gilot’s Amended
Complaint, under the above standards.
II. 	Background
Gilot alleges as follows: “Request medical records pertaining
mental and cancer information instead got false information on records
violation of HIPPA Laws. Want to sue for damages negligence HIPPA
violations.” (Amended Complaint, Dkt. 4, ¶ 3).
Gilot seeks monetary damages in the amount of $584,000.
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III. 	Discussion
A. The Complaint should be dismissed because the
District Court lacks subject matter jurisdiction.
1. 28 U.S.C. § 1331
A plaintiff can exercise federal question jurisdiction when their
claim arises “under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. A case arises under federal law if the
complaint “establishes either that federal law creates the cause of
action or that the plaintiff’s right to relief necessarily depends on
resolution of a substantial question of federal law.” Bay Shore Union
Free Sch. Dist. v. Kain, 485 F.3d 730, 734-35 (2d Cir. 2007) (quoting
Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)).
Invoking federal jurisdiction without pleading any facts demonstrating
a federal law claim, does not create federal subject matter jurisdiction.
See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188-89
(2d Cir. 1996).
Gilot alleges federal court jurisdiction under the Health Insurance
Portability and Accountability Act (“HIPPA”) which prohibits the
disclosure of medical records without a patient’s consent. See 42 U.S.C
§§ 1320d-1 to 1320d-7. However, the statute does not create a private
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cause of action for individuals to enforce this prohibition. See Meadows
v. United Servs., 963 F.3d 240, 244 (2d Cir. 2020); see also McFadden v.
Annucci, No. 9:25-CV-1252 (AJB/ML), 2025 WL 3265447, at *41
(N.D.N.Y. Nov. 24, 2025). Instead, HIPAA provides for penalties to be
imposed by the Secretary of the Department of Health and Human
Services. Id.; see also § 1320d-5(a)(1). By delegating enforcement
authority to the Secretary of the Department of Health and Human
Services, the statute reflects Congress’ intent for HIPAA not to create a
private remedy. See 42 U.S.C. § 1320d-3, § 1320d-5; see also Alexander
v. Sandoval, 532 U.S. 275, 290, (2001) (“The express provision of one
method of enforcing a substantive rule suggests that Congress intended
to preclude others.”). Because HIPAA confers no private cause of action,
the District Court lacks subject matter jurisdiction over Gilot’s HIPPA
claims.
Similarly, Gilot’s assertion that she has a claim(s) under 18 U.S.C.
§ 1305 does not confer the District Court with federal question
jurisdiction because that section is a criminal statute for which there is
no private right of action. See Tavares v. New York City of Health &
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Hosps. Corp., No. 13-CV-3148, 2015 U.S. Dist.LEXIS 3815, at *25 fn. 9
(S.D.N.Y. Jan. 13, 2015).
Gilot’s claims of “negligence, “abuse,” and “[i]nitial misleading lies
on medical records” as a basis for federal question jurisdiction are
without merit. (Dkt. 1, § IIA).
2. 28 U.S.C. § 1332
In addition to federal question jurisdiction, federal court
jurisdiction can be invoked under 28 U.S.C. § 1332, where a plaintiff
alleges that they and the defendant are citizens of different states. See
Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 388 (1998). For diversity
purposes, “a corporation is a citizen of both its state of incorporation
and its principal place of business.” Powell v. Ocwen Loan Servicing,
LLC, 2024 WL 763406, at *2 (2d Cir. 2024). Further, to establish
diversity jurisdiction, a plaintiff must allege to a “reasonable
probability” that the claim is more than the sum or value of $75,000.00,
the statutory jurisdictional amount. See 28 U.S.C. § 1332(a); see also
Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir.
2006) (citation and internal quotation marks omitted).
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Because St. Joseph’s Hospital, which has its principal place of
business in the Northern District of New York (Syracuse, New York),
and Gilot, who lives in Brookly, New York, are not citizens of different
states, there is no diversity of citizenship. And because there is no
diversity of citizenship, the District Court lacks subject matter
jurisdiction over Gilot’s claims.
Gilot cannot sustain her burden of proving by a preponderance of
the evidence that the District Court has subject matter jurisdiction over
her claims. See Pina v. United States, No. 20-CV-1371, 2021 WL
2019003, at *3 (S.D.N.Y. Apr. 20, 2021) (citations omitted). The Court
therefore recommends that the District Court dismiss the Complaint
without prejudice.
IV. Leave To Amend
“Generally leave to amend should be freely given, and a pro se
litigant in particular should be afforded every reasonable opportunity to
demonstrate that he has a valid claim.” Matima v. Celli, 228 F.3d 68, 81
(2d Cir. 2000) (cleaned up). An opportunity to amend is not required,
however, where “the problem with [the plaintiff's] causes of action is
substantive” such that “better pleading will not cure it.” Cuoco v.
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Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). “[L]ack of subject-matter
jurisdiction is generally viewed as a substantive defect.” Planck v.
Schenectady Cnty., No. 1:12-CV-0336 (GTS/DRH), 2012 WL 1977972, at
*6 (N.D.N.Y. June 1, 2012).
Mindful of Gilot’s pro se status, the Court recommends granting
Gilot leave to amend. A second amended complaint, which shall
supersede and replace the amended complaint in its entirety, must
allege claims of misconduct or wrongdoing against the named defendant
which Gilot has a legal right to pursue, and over which jurisdiction may
properly be exercised. If Gilot files a second amended complaint, she
must also comply with the pleading requirements of Rules 8 and 10 of
the Federal Rules of Civil Procedure.
V. 	Conclusion
WHEREFORE, based on the findings above, it is hereby
ORDERED that, Gilot’s motion to proceed in forma pauperis
(Dkt. 2) is GRANTED, and it is further
RECOMMENDED, that Gilot’s Amended Complaint be
DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO
AMEND, and it is further
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ORDERED that the Clerk provide Gilot with a copy of this
Report-Recommendation and Order, along with copies of the
unpublished decisions cited herein in accordance with the Second
Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per
curiam), and it is further
ORDERED, that the Clerk mail Gilot an additional copy of the
pro se handbook.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)
days within which to file written objections to the foregoing report.2
Such objections shall be filed with the Clerk of the Court. FAILURE
TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984
F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72.
2 If you are proceeding pro se and are served with this Report-Recommendation and
Order by mail, three additional days will be added to the fourteen-day period,
meaning that you have seventeen days from the date the Report-Recommendation
and Order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the
last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then
the deadline is extended until the end of the next day that is not a Saturday,
Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Dated: February 4, 2026.
_________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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McFadden v. Annucci, Slip Copy (2025)
2025 WL 3265447
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2025 WL 3265447
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Robert MCFADDEN, Plaintiff,
v.
Anthony J. ANNUCCI, et al., Defendants.
9:25-CV-1252 (AJB/ML)
|
Signed November 24, 2025
Attorneys and Law Firms
ROBERT McFADDEN, Plaintiff, pro se, 14-B-3670, Mid-
State Correctional Facility, P.O. Box 2500, Marcy, NY 13403.
DECISION and ORDER
ANTHONY J. BRINDISI, United States District Judge
I. INTRODUCTION
*1 The Clerk has sent to the Court for review a complaint
submitted by pro se plaintiff Robert McFadden asserting
claims pursuant to 42 U.S.C. § 1983 (“Section 1983”),
together with an application to proceed in forma pauperis
(“IFP”) and a motion for injunctive relief. Dkt. No. 1, Dkt.
No. 1-1, Dkt. No. 1-2, Dkt. No. 1-3, Dkt. No. 1-4, Dkt. No.
1-5, Dkt. No. 1-6, Dkt. No. 1-7, Dkt. No. 1-8 (collectively,
“Compl.”); 1 Dkt. No. 3 (“IFP Application”); Dkt. No. 2
(“First Motion for Injunctive Relief”). 2 Plaintiff, who is
incarcerated at Mid-State Correctional Facility, has not paid
the filing fee for this action.
1 The complaint is 360 handwritten pages. Based on
the size of the filing, the complaint is comprised
of nine docket entries. Page citations herein refer
to the entirety of the pleading, as opposed to
the docket number on which the referenced page
appears. By way of example, page 38 of the
complaint appears at Dkt. No. 1-1 at 1, and is cited
herein as page 38.
2 On October 1, 2025, the Court received an identical
copy of the First Motion for Injunctive Relief,
which is separately docketed as a Motion for
Preliminary Injunction/Restraining Order. See Dkt.
No. 11 (“Second Motion for Injunctive Relief”).
For the sake of clarity, the Second Motion for
Injunctive Relief is denied as duplicative of the
First Motion for Injunctive Relief.
II. IFP APPLICATION
“28 U.S.C. § 1915 permits an indigent litigant to commence
an action in a federal court without prepayment of the filing
fee that would ordinarily be charged.” Cash v. Bernstein,
No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct.
26, 2010). 3 “Although an indigent, incarcerated individual
need not prepay the filing fee at the time of filing, he must
subsequently pay the fee, to the extent he is able to do so,
through periodic withdrawals from his inmate accounts.” Id.
(citing 28 U.S.C. § 1915(b) and Harris v. City of New York,
607 F.3d 18, 21 (2d Cir. 2010)).
3 Section 1915(g) prohibits a prisoner from
proceeding in forma pauperis where, absent a
showing of “imminent danger of serious physical
injury,” a prisoner has filed three or more actions
or appeals that were subsequently dismissed as
frivolous, malicious, or failing to state a claim upon
which relief may be granted. 28 U.S.C. § 1915(g).
Based upon the Court's review of plaintiff's
litigation history on the Federal Judiciary's Public
Access to Court Electronic Records (“PACER”)
Service, it does not appear that plaintiff has
accumulated three strikes for purposes of 28 U.S.C.
§ 1915(g).
Upon review, the Court finds that plaintiff has submitted a
properly completed and signed IFP Application along with an
inmate account statement showing his prison balance over the
preceding six months, which, together, demonstrate economic
need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the
inmate authorization form required in this District. Dkt. No.
4. Accordingly, plaintiff's IFP Application is granted.
III. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard
*2 Section 1915(e) directs that, when a plaintiff seeks to
proceed in forma pauperis, “(2) ... the court shall dismiss
the case at any time if the court determines that – ... (B)
the action ... (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.” 28
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U.S.C. § 1915(e)(2)(B). 4 Thus, even if a plaintiff meets the
financial criteria to commence an action in forma pauperis, it
is the court's responsibility to determine whether the plaintiff
may properly maintain the complaint that he filed in this
District before the court may permit the plaintiff to proceed
with this action in forma pauperis. See id.
4 To determine whether an action is frivolous, a court
must look to see whether the complaint “lacks an
arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
Likewise, under 28 U.S.C. § 1915A, a court must review
any “complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a
governmental entity” and must “identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the
complaint ... is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or ... seeks monetary relief
from a defendant who is immune from such relief.” 28 U.S.C.
§ 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116 (2d
Cir. 1999) (per curiam) (Section 1915A applies to all actions
brought by prisoners against government officials even when
plaintiff paid the filing fee); Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007) (stating that both sections 1915 and 1915A
are available to evaluate prisoner pro se complaints).
In reviewing a pro se complaint, the court has a duty to show
liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d
605, 606 (2d Cir. 1990) (per curiam), and should exercise
“extreme caution ... in ordering sua sponte dismissal of a
pro se complaint before the adverse party has been served
and both parties (but particularly the plaintiff) have had an
opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37,
41 (2d Cir. 1983) (internal citations omitted). Therefore, a
court should not dismiss a complaint if the plaintiff has stated
“enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). Although the Court should
construe the factual allegations in the light most favorable to
the plaintiff, “the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to
legal conclusions.” Id. “Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged–but it has not ‘show[n]’–‘that the
pleader is entitled to relief.’ ” Id. at 679 (quoting Fed.
R. Civ. P. 8(a)(2)). Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 555). Thus, a pleading that
only “tenders naked assertions devoid of further factual
enhancement” will not suffice. Id. (internal quotation marks
and alterations omitted).
B. Summary of the Complaint
*3 The complaint, which is comprised of 360 handwritten
pages, asserts allegations of wrongdoing by over 130
defendants arising out of plaintiff's incarceration at Mid-
State Correctional Facility between July 2022 and the present,
while in the custody of the New York State Department of
Corrections and Community Supervision (“DOCCS”). See
generally Compl. The following facts are set forth as alleged
in the complaint. 5
5 Plaintiff originally submitted 264 pages of exhibits
with his complaint. Dkt. Nos. 1-11, 1-12, 5, 5-1, 6,
6-1. Over roughly the next two weeks, the Court
received approximately 70 pages of additional
exhibits from plaintiff. See Dkt. Nos. 7, 8. One
week after that, the Court received a second copy
of the complaint, along with 870 pages of exhibits
from an attorney representing plaintiff in another
pending case. See Dkt. Nos. 10 thru Dkt. No. 10-36.
Some of these exhibits overlap with the exhibits
filed with the complaint. After this filing, plaintiff
submitted over 250 pages of additional exhibits in
support of his complaint and Motion for Injunctive
Relief. See Dkt. Nos. 12, 13, 14, 15, 16, 17, 18. It is
both burdensome and a waste of precious judicial
resources to ask a court to sift through hundreds
of pages of exhibits filed piecemeal, and with
duplicates. Nonetheless, the Court has considered
plaintiff's filings in connection with its sufficiency
review herein.
1. Plaintiff's Past Confinement History
In August 2019, plaintiff was transferred to Mid-State
Correctional Facility and placed in the Step-Down Program,
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which is “a special housing unit program for excessive
disciplinary sanctions ... for problematic prisoners[.]” Compl.
at 24. On August 17, 2019, defendant Corrections Officer
Annarino conducted an inventory and property review of
plaintiff's belongings to identify “in-cell permitted items.” Id.
Defendant Annarino signed the inventory sheet and plaintiff's
“non-permitted items were bagged [and] sealed then placed
in temporary storage” pursuant to prison rules. Id. at 25.
Thereafter, defendant Annarino authored a “partially” false
misbehavior report against plaintiff, which “set the stage for
a chain of [negative] events[.]” Id.
At some point thereafter, defendant Deputy Superintendent
of Programs Fischer “had plaintiff removed” from Mid-
State Correctional Facility based on “unsafe conditions”
and threats made against plaintiff. Compl. at 25. In or
before 2021, plaintiff wrote to defendant then-acting Director
of Special Housing Venettozzi to request that he “not be
returned to Mid-State Step Down Program ... due to the
2019 events[.]” Id. at 26. Plaintiff also “corresponded with”
defendant Deputy Commissioner of Programs McCoy to raise
the “same concerns” and “request[ ] a different program[.]”
Id. at 26-27.
On March 31, 2022, the “HALT Act ... took effect[,]”
placing “limits on confinement sanctions[,]” “redefin[ing]
‘Segregated Confinement[,]’ ” and imposing “broad humane
measures” on the treatment of certain prisoners. Compl. at
27-28. 6 At the time, plaintiff was incarcerated at Fishkill
Correctional Facility “recovering from a serious seizure [and]
related injuries to [his] body[,] leg [and] speech.” Id. at
28. Plaintiff was also “being treated for” (1) food allergies
requiring a very strict restricted diet[,]” (2) seizures, (3) a
spine condition for which he was prescribed pain medication,
a back brace, and physical therapy, (4) certain digestive
problems, and (5) Post Traumatic Stress Disorder for which
he was prescribed Tegretol. Id. at 28-31.
6 The Humane Alternatives to Long Term Solitary
Confinement Act (“HALT Act”) is “a New York
State law, which took effect on March 31, 2022,
and amends the standards in N.Y. Corr. Law §
137 governing treatment, control, and discipline at
correction facilities[.]” Rivera v. Molina, No. 23-
CV-4128, 2023 WL 4847865, at *4-5 (S.D.N.Y.
July 27, 2023); N.Y. Correct. Law § 137(6). Among
other things, the law limits segregated confinement
[footnote omitted] to fifteen consecutive days and
twenty days within any sixty-day period. See N.Y.
Correct. Law § 137(6)(i); New York State Corr.
Officers & Police Benevolent Ass'n, Inc. v. Hochul,
607 F. Supp. 3d 231, 236 (N.D.N.Y. 2022).
*4 In light of the changes to the law and
plaintiff's conditions, defendants McCoy, former DOCCS
Commissioner Annucci, and new Acting Director of Special
Housing Rodriguez were “mandated” to “place [plaintiff]
in a special population unit” at a different prison. Compl.
at 31-32. Instead, these officials allowed plaintiff to remain
in a Residential Rehabilitation Unit at Fishkill Correctional
Facility until July 8, 2022. Id. at 32.
On or about July 8, 2022, defendant McCoy approved
plaintiff's transfer back to Mid-State Correctional Facility,
and defendant Venettozzi, who was working at Mid-State
Correctional Facility as the First Deputy Superintendent,
“disregarded the clear safety concerns” to plaintiff and, along
with defendant Mid-State Superintendent Passage, “allowed
[him] to be returned to Mid-State” by accepting his transfer to
the facility. Compl. at 27, 32, 34. The transfer also occurred
based on the failure of defendants Rodriguez, Annucci,
and McCoy to adopt and implement alternative housing
requirements as set forth in the HALT Act. Id. at 32-33.
Despite the passage of time since plaintiff was last housed at
this facility, “a lot of [the same] staff [members were] still
working the Step-Down Program's housing unit,” including
defendants Fischer, Deputy Superintendent of Security Burns,
Annarino, and Corrections Officer Matlock, all of whom were
aware of the “constant group attacks [and] harassment” that
plaintiff experienced in 2019. Id. at 27.
At some point after plaintiff was returned to Mid-State
Correctional Facility, defendant Daniel J. Martuscello, III
became the Acting DOCCS Commissioner. Compl. at 35.
However, this official “did not stop the unlawful [and]
illegal practices” related to plaintiff's confinement conditions.
Id. Instead, plaintiff “remained [and] still remains in the
Step-Down Program, with even more additional physical
disabilities[.]” Id.
At some point in 2023, defendant Passage retired, and
defendant Hilton became the Superintendent of Mid-State
Correctional Facility. Compl. at 35, 39. However, this official
also “did not stop the illegal practices” that deprived plaintiff
of “his rights under [the] HALT Act” to be “placed in a special
population unit[.]” Id. at 35-36.
From 2022 to the present, plaintiff “has amassed several life
threatening new diagnos[e]s” and been deprived of treatment
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for these conditions. Compl. at 36-37. Plaintiff has filed
“uncountable grievances” with defendant Inmate Grievance
Program Supervisor Tapia regarding his medical concerns and
appealed the denial of those grievances to defendant Passage
while he was Superintendent, and thereafter to defendants
Hilton and Director of Inmate Grievance Program Rachel
Seguin. Id. at 37-38. Plaintiff has also verbally complained
to defendants Passage and Hilton about the “medical torture
[and] abuse” he has experienced when these officials made
“weekly rounds” in plaintiff's housing area. Id. None of
these officials took any action to address plaintiff's worsening
condition. Id.
2. Medical Issues
Upon arriving at Mid-State Correctional Facility on or
about July 8, 2022, defendant Primary Care Provider C.
Hayes “confiscated ... creams [and] shampoos” prescribed
to plaintiff by a Dermatologist to address skin rashes,
“without any examination whatsoever.” Compl. at 40.
Plaintiff had been using these medications since 2017,
when he “had a[n] allergy attack [and] was hospitalized
overnight[.]” Id. Plaintiff “also spoke to defendant Hayes
about the symptoms that would soon happen without
the creams [and] shampoos[.]” Id. at 41. Nonetheless,
defendant Hayes “refused to provide the medications[,]”
which plaintiff remained without for thirteen days. Id. at
40-41. Defendant Hayes informed plaintiff that he needed
to be seen by the facility's provider, defendant Nurse
Administrator Czerwinski, before he would receive any
prescribed medications, without providing a date for plaintiff
to be seen. Id. at 41-42.
*5 Beginning in 2016, plaintiff was also “medically
prescribed a Special Diet Order” to address “mandatory diet
restrictions[.]” Compl. at 40. Plaintiff “explained” these facts
to defendant Hayes and requested that “the Special Diet
Order ... be filled [out] by medical staff” and “follow up
with food services in order for [him] to receive the correct
meals[.]” Id. Defendant Hayes “confirmed the allergen order
through medical services [and] filled out the mandated
paperwork [and] sent food services staff a copy of that
medical diet.” Id. at 40-41. Plaintiff also signed for the
medical diet. Id. at 41.
Plaintiff's “medical diet order was provided to defendant FSA
Deck, who had control over Food Services [and] related
matters [and] operations.” Compl. at 41.
Following intake, plaintiff wrote to defendant Czerwinski
“about all medications being confiscated with no exam or
consult.” Compl. at 42. Defendant Czerwinski did not respond
to plaintiff's letter. Id.
Roughly ten to twelve days after plaintiff arrived at Mid-State
Correctional Facility, rashes, bumps, skin tearing, and open
sores “began to reappear” on his body. Compl. at 5. These
symptoms “rapidly got wors[e] each day as the disruption
continued with [his] medications.” Id. Plaintiff “continued to
fill out sick calls.” Id.
On July 20, 2022, plaintiff “was seen” by defendant Primary
Care Provider Dr. Mohammed, who visited plaintiff at his cell
door with two other corrections officials. Compl. at 42-44.
As a result of “the extremely loud housing unit activity,”
defendant Mohammed spoke “loudly ... about [plaintiff's]
seizures [and] the symptoms of [his] groin rash in a[n]
agitated manner.” Id. at 42-43.
Plaintiff “requested to be examined in the medical office[,]”
which was in “very close proximity to [his] cell[.]” Compl.
at 43. Defendant Mohammed denied plaintiff's request. Id.
During this exchange, “several other prisoners ... began
making lewd, vulgar, [and] insulting remarks” directed at
plaintiff's medical conditions. Id.
At some point, defendant Mohammed “asked [and] demanded
to see [plaintiff's] groin rash only.” Compl. at 44. “Plaintiff
then exposed himself to [defendant Mohammed and] the
security staff ... with her.” Id. Based on the height difference
between plaintiff and defendant Mohammed, “the height of
the window [and] stains/scratches on the window, showing
her was not even meaningful or possible due to her inability
to see the areas [at issue].” Id.
After attempting to examine plaintiff, defendant Mohamed
stated that his condition was “only dry skin” and left
before plaintiff could show her other outbreak areas on
his body or “address medications.” Compl. at 44. As a
result of not having his medications re-ordered, plaintiff
continued to experience bleeding rashes and open sores
that burned and itched, causing discomfort and difficulty
sleeping. Id. Plaintiff “continued to file sick calls requesting
the dermatology creams [and] shampoos be reissued[,]” and
“new eye glasses[,]” and “for food services to be contacted
about [not providing him] the medical diet for allergens[,]”
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but it still took “over two weeks” to resolve these issues. Id.
at 45.
On or about August 8, 2022, plaintiff “filed a sick-call form
with defendant Hayes requesting to review his medical files,
receive medications confiscated upon arrival, [and] new eye
glasses.” Compl. at 42. Plaintiff provided defendant Hayes
with his “broken pair of glasses at that time.” Id.
On August 11, 2022, plaintiff met with defendant Primary
Care Provider Ferguson at his cell “about medications being
stopped.” Compl. at 45. Defendant Ferguson spoke to plaintiff
“loudly[,]” and in the presence of “security officers.” Id.
Defendant Ferguson “denied plaintiff's request for a[n] exam/
meeting in the medical station” and instead “continued to
broadcast [plaintiff's] medical matters [and] concerns.” Id.
After some time, defendant Ferguson “looked at the rashes
[and] bumps” on plaintiff's body and “reordered the Kenalog
(steroid cream) that defendant Mohammed refused [and]
discontinued.” Id. Defendant Ferguson “also placed a request
for another Dermatology consult with the specialist outside
of the prison.” Id.
*6 “Despite [plaintiff's] very clear need” for the medications
that he had been without for “over 30 days[,]” defendant
Ferguson “still reduced the previous order from twice daily
to once per day” and “did not reorder the head [and] facial
shampoos” previously prescribed. Compl. at 46. Thereafter,
plaintiff's symptoms “increased because of the[ ] interferences
[and] disruptions [and] denials.” Id. Plaintiff then “filed
another grievance [and] wrote to ... defendant Czerwinski
about the problem [and] to request medical files again [and] ...
eye glasses.” Id.
After not receiving a response to his letter, plaintiff
“addressed a sick call” to defendant Czerwinski, which he
delivered to defendant Hayes, who shared an office with
defendant Czerwinski. Compl. at 46-47. By October 2022,
plaintiff “had filed an unknown amount of sick-calls [and]
grievances on the medical staff[,]” with “no relief ever
provided[.]” Id. at 47.
On October 24, 2022, plaintiff “was formally approved” for
the “Religious Allergen Free Diet.” Compl. at 53. However,
defendant Mohammed “refused to terminate the medical
diet order[,]” which prevented plaintiff from “starting the
Religious Allergen Free Diet.” Id.
“By November 7, 2022, the plaintiff was filing grievances
that named defendant[s] Mohammed, ... Czerwinski, ... [and]
Passage in each complaint.” Compl. at 48. As of this date,
plaintiff had filed “sick calls [and] daily complaints for
20 consecutive days” based on “stomach pains [and] the
associated symptoms with an abnormal digestive system[.]”
Id. Defendant Czerwinski “allowed months [and] months to
pass without even searching for [plaintiff's] medical file” or
“assess[ing]” plaintiff's condition. Id. at 49.
Around this same time, defendant Mohammed “stopped
[plaintiff's] pain meds, then changed them after a prolonged
delay, knowing plaintiff had chronic back [pain,] ... a brace,
and a tens unit” and “knowing plaintiff was not being allowed
to attend the physical therapy sessions order[ed.]” Compl.
at 50-51. Defendant Mohammed also deprived plaintiff
of the “medication [and] equipment” he needed for “pain
management” and “stopped the plaintiff's seizure medications
abruptly” based on bloodwork results, without arranging for
prompt review by a specialist. Id. at 51. As a result, plaintiff
went over a year without seizure medications previously
prescribed to him, and throughout this time, defendant
Mohammed “did nothing but allow the plaintiff to physically
deteriorate[.]” Id.
On or around November 8, 2022, plaintiff filed a grievance
against defendants Passage, Tapia, Deck, and Mohammed
“for collusion to deprive the plaintiff of the Religious
Allergen Free Kosher Diet” and causing him to miss “42
Kosher meals.” Compl. at 54.
At some point in 2023, defendant Primary Care Provider
Dr. Abdelwahab “replac[ed] defendant Mohammed.” Compl.
at 52. This official also “refused to reorder [plaintiff's]
seizure meds, medical boots, [and] knee brace,” refused to
schedule plaintiff for back and knee scans, and refused to
“ensure [plaintiff's] Hematology appointment was scheduled
promptly[,] urgently[,] [and] correctly.” Id. Defendant
Abdelwahab also “refused to follow DOCCS Health Service
Policy 1.24A” regarding pain management and stopped one
pain medication to “prescribe another ... which had been
medically proven to cause stomach problems [and] blood
clotting” in plaintiff. Id. In addition, defendant Abdelwahab
“refused to provide anything for the blood problem, pain
problems, weight loss, or eye glasses” and, as with defendant
Mohammed, “refused to sign the mandatory forms that would
allow the plaintiff to terminate the medical diet order [and]
restart the Religious Allergen Free Kosher Diet.” Id. at 53.
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*7 From late 2022 through the summer of 2023, defendant
Primary Care Provider Paladino “regularly delayed refills
for [plaintiff's] pain [and] stomach meds, derm. creams, tens
unit battery replacements, tens unit patches [and plaintiff's]
access to medical files[.]” Compl. at 59. This official also
intentionally failed to file plaintiff's health proxy paperwork,
which plaintiff “handed to her” during medical rounds. Id.
Defendant Czerwinski also failed to file this healthcare proxy,
which plaintiff separately provided to her. Id.
On May 8, 2023, at approximately 6:15 a.m., defendant
Corrections Officer Hoffman notified plaintiff that he was
scheduled for a medical trip and asked if plaintiff wished to
attend. Compl. at 57. Plaintiff “affirmed he was going” and
stated that he “need[ed] breakfast.” Id. Defendant Hoffman
left the area and indicated she would relay his response. Id.
Roughly thirty minutes later, defendant Corrections Officer
LaCoppola arrived at plaintiff's cell with the same inquiry as
defendant Hoffman. Id. Plaintiff told this official the same
things. Id.
Roughly fifteen minutes later, defendant Christopher Hayes
arrived at plaintiff's cell and indicated that he was informed
that plaintiff “was refusing the medical trip.” Compl. at 57.
Plaintiff responded that he “did not say that[,]” repeated
his desire to attend the trip, and requested breakfast. Id.
Defendant Hayes “replied that [plaintiff] was already late
[and] could get a bag lunch[.]” Id. Plaintiff advised defendant
Hayes that he could not eat the bag lunch meal option because
of his allergies, and that his “Special Diet Meal was already
downstairs with all the other breakfast meals” as “nobody”
had eaten at this point. Id. at 57-58. Defendant Hayes stated
that he would check on the matter but never returned. Id. at 58.
Plaintiff later learned that defendant Hayes left the building.
Id.
Roughly ten minutes later, defendants Corrections Officer
Harris and Nurse Jane Doe “came around for meds.” Compl.
at 58. Plaintiff spoke with these officials about his medical
trip, and defendant Harris stated that she would “look into
it.” Id. Neither official ever returned. Id. Plaintiff later spoke
with defendants OMH Social Worker Russell and Corrections
Sergeant Mayo “about the problem” with defendant Hayes.
Id.
Later that day, plaintiff filed a grievance, which defendant
Tapia denied on the grounds that plaintiff was scheduled for
a legal call and medical appointment at overlapping times.
Compl. at 59. The Inmate Grievance Review Committee
and defendant Tapia refused to review the recording of
plaintiff's interactions with defendant Hayes. Id. Defendant
Hilton subsequently affirmed the denial of the grievance and
also refused to review the aforementioned recording. Id.
In or around June 2023, plaintiff “went to the medical unit
for a[n] endoscopy/colonoscopy prep ... after x-rays revealed
air in [his] stomach” and other complications. Compl. at
59. Plaintiff spoke with defendant Paladino and Offender
Rehabilitation Coordinator (“ORC”) Brown regarding his
healthcare proxy. Id. at 59-60. Defendant Paladino ignored
plaintiff's request to ensure that the completed form was in his
records, and defendant Brown “refused to allow plaintiff to
file another ... form” despite confirming that it was not in his
files. Id. at 60. As a result, plaintiff underwent “a very serious
medical procedure” without a healthcare proxy form on file.
Id.
On or about July 19, 2023, plaintiff met with defendant
Abdelwahab at his cell about his grossly swollen” knee
and back pain. Compl. at 57. After speaking with plaintiff,
defendant Abdelwahab denied his request for an MRI, pain
medication, and a knee brace or compression sleeve. Id. at
57-58.
*8 On August 7, 2023, defendant Corrections Officer
Rosario arrived at plaintiff's cell to transport him for a
medical trip. Compl. at 57. Plaintiff “confirmed that he
wanted to attend the medical appointment” and “requested
to speak [with] a supervisor or medical staff because [his]
last medical trip ... was intentionally manipulated” such that
upon plaintiff's arrival to the medical facility, he was told
that his appointment had been canceled. Id. at 57-58. Nobody
ever met plaintiff at his cell, and his trip apparently never
happened. Id.
By August 10, 2023, plaintiff had continuously filed
grievances detailing his inadequate medical treatment.
Compl. at 57. Defendant Tapia did not process plaintiff's
grievances related to his healthcare proxy and other “health
problems” until receiving his detailed grievance “on medical
torture” on August 10, 2023. Id. at 60-61. Plaintiff appealed
defendant Tapia's denial of this grievance to defendant Hilton,
who “denied the actions plaintiff requested therein.” Id. at
61-62.
On or around August 28, 2023, defendant Schrader
“replac[ed] defendant Abdelwahab as plaintiff's primary care
provider.” Compl. at 56, 62, 64. As with past changes to
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plaintiff's primary care provider, this change “came with
instant disruptions to prescriptions, refills, equipment, exams,
[and] medical files[.]” Id. at 56.
Between the spring and summer of 2023, defendant Nurse
Aiken was responsible for collecting plaintiff's sick call slips
during medical rounds, “relaying medical matters” raised in
those sick calls slips to defendant Schrader, and scheduling
defendant Schrader's meetings and exams with inmates.
Compl. at 63. On a daily basis, plaintiff showed defendant
Aiken “visible swelling” on parts of his body. Id. “[A]fter
visualizing all the gross swelling to plaintiff's knee, legs, [and]
feet” on August 28, 2023, defendant Aiken told plaintiff that
he was scheduled to see defendant Schrader in two days.
Id. at 64. However, on August 30, 2023, defendant Schrader
“refused” to visit plaintiff's housing unit “due to the yelling,
screaming [and] banging on doors all around plaintiff's cell
location.” Id.
Defendant Aiken then advised plaintiff that he would be seen
by defendant Schrader on September 6, 2023. Compl. at 64.
However, when that day arrived, defendant Schrader again
refused to visit plaintiff's housing area “for the same reasons,
according to Aiken.” Id. “This became a pattern of delays,
from this point” to the filing date of the complaint. Id.
On September 13, 2023, defendant Schrader visited plaintiff's
cell and “loudly” listed his health conditions “for the entire
housing gallery ... to hear[.]” Compl. at 62-63. Although
plaintiff had swelling throughout his body for over a year,
defendant Schrader refused to examine him, and denied his
request for medical boots, compression socks, a knee brace,
medication for his back, knee, leg, and foot pain, and an MRI.
Compl. at 63.
Thereafter, plaintiff submitted a grievance regarding
inadequate medical treatment, which resulted in defendant
Schrader informing him that “medical records indicated
[plaintiff was] refusing medical trips [and] failing to attend.”
Compl. at 65. Plaintiff informed defendant Schrader that the
entries were false, that “nobody showed up for the trip, or with
a refusal form to be signed,” and that his medical trips were
being scheduled on the same dates that he had prescheduled
legal calls, meetings, and court dates in order to prevent him
from attending these appointments. Id. at 65-66.
*9 Plaintiff filed grievances against defendants Czerwinski,
Aiken, Schrader, Health Services Director Chaudry, Social
Worker Kallay, Nurse Dana, and Nurse Surgey related to the
scheduling of his medical trips and legal matters on the same
dates and times, including on May 8, May 16, May 19, May
30, June 3, June 6, and June 12, 2023. Compl. at 66, 70.
Plaintiff also wrote letters, emails, and made verbal complaint
to defendants Assistant Deputy Superintendent of Mental
Health Jennifer Christopher, Candy Hayes, Paladino, Dana,
Hilton, Fischer, Harris, Storey, Fish, Kallay, Dorchester,
Perham, Czerwinski, Schrader, Penree, Chaudry, Clapper,
Abdelwahab, Schiavi, Nurse Practitioner Tourtelot, Costello,
Yaddow, Ross, Hall, Klien, Mayo, Chandler, Hamilton,
Dundden, Johnson, Carpenter, Bishop, and Murphy about this
issue. Id. at 70-71.
On October 3, 2023, plaintiff attended an initial Hematology
appointment more than twelve months after it was first
scheduled. Compl. at 72. Corrections Officer Lacoppola “was
given plaintiff's medical file, put together by defendants
Chaudry, Czerwinski, [and] Schrader ... based on chain
of command [and] customs previously explained by
defendant[s] Dana, Clapper, Candy Hayes, Banks, [and]
Brown[.]” Id. Upon arriving at the outside facility and
meeting with a specialist, plaintiff was advised that no “labs
[or] reports” were included in his medical file, and that
bloodwork needed to be taken. Id.
On or about October 8, 2023, “seventeen tubes of blood”
were “taken from the plaintiff, who was then diagnosed
with Leukopenia [and] Thrombocytopenia[.]” Compl. at
72-73. Thereafter, plaintiff's follow-up appointments were
repeatedly “botched[,]” resulting in a continued decline in
plaintiff's condition. Id. at 73. At some point, after additional
bloodwork, a specialist diagnosed plaintiff with iron anemia
and “recommended iron pills, multi-vitamins” and improved
nutrition. Id. However, defendant Schrader “refused to follow
the recommendations for nutrition” from that point through
the filing date of the complaint, resulting in plaintiff's loss of
60 pounds. Id.
In January or February 2024, defendants Schrader and Penree
examined plaintiff privately, during which time defendant
Schrader “stated that she was filling out the mandatory
DOCCS Policy Chronic Pain Management forms[,] ...
ordered an MRI for [plaintiff's] grossly swollen knee[,]”
promised to “adjust [plaintiff's] pain meds to Gabapentin after
[his] next Hematology consult[,]” and prescribed plaintiff
medical boots and a pill for reducing inflammation. Compl. at
74-75. Defendant Schrader also prescribed plaintiff Tylenol
despite knowing about plaintiff's “blood problems” and
“refused to change” the prescription after plaintiff “mentioned
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the side effects” as the reason why the prescription was
“previously stopped.” Id. at 75. In addition, defendant
Schrader “refused to change” plaintiff's pain medication order
despite knowing the prescribed medication was causing him
stomach pain. Id.
As a result of a negative reaction to one or more of the
prescribed medications, plaintiff experienced digestive issues
and lost “at least 10 pounds in under 30 days[.]” Compl. at 76.
In or around “March/April” of 2024, defendant Schrader
“had the plaintiff sent to the Orthopedic, who gave [him] a
knee injection of cortozone after x-rays [and] exams” and
“requested the MRI” for further evaluation. Compl. at 77.
Plaintiff was eventually scheduled for an MRI on June 5,
2024, which revealed various structural deficiencies. Id.
On August 28, 2024, plaintiff's scheduled follow-up
appointment with the Orthopedic “was intentionally botched”
by defendants Chaudry, Czerwinski and Schrader, who “gave
the wrong address on the itinerary provided to the CERT
escorts[,]” defendants Corrections Sergeant Walker and
Corrections Officer Henry. Compl. at 77. Eventually, plaintiff
arrived at the Cayuga Medical Center for his appointment, but
the “necessary” medical records were omitted from his file by
defendants Schrader, Czerwinski, and Chaudry. Id. at 77-78.
As a result, the specialist “was unable to review [plaintiff's]
MRI results to determine the corrective surgery procedure
necessary,” and instead had to reschedule the appointment. Id.
at 78.
*10 As of April 2025, plaintiff's Orthopedic appointment
had yet to be scheduled despite him sending “numerous
emails [and] letters” to defendants Chaudry, Czerwinski,
Schrader, Hilton, Fischer, Storey, and Harris. Compl. at 78.
Plaintiff also “spoke to [and] filed sick calls [and] grievances
with [and] against defendant Penree” regarding this issue. Id.
During the same time that plaintiff was seeking treatment
for his knee, he was denied “self carry meds,” “nutritional
supplements” and “proper pain management [treatment and]
medications” by defendants Czerwinski, Schrader, Penree,
Hilton, Storey, Chaudry, Bishop, and Jennifer Christopher.
Compl. at 79. Plaintiff detailed his “chronic pain problems”
and other medical conditions in grievances and sick call
requests, yet defendant Schrader “never followed the course
of care” discussed with plaintiff during his private evaluation
with her in January or February 2024. Id. 80. Plaintiff also
“continued to ask for physical therapy[,]” which was “denied
based on malice” by defendants Christopher Hayes and
Candy Hayes. Id. at 80-81.
Refills of certain medications prescribed to plaintiff were
also “delayed by weeks at a time on a habitual pattern once
per month” by defendants Penree and Schrader, in response
to plaintiff repeatedly filing grievances and complaints.
Compl. at 81-82. On June 3, 2024, defendant Penree
personally witnessed plaintiff's adverse skin condition,
including irritation and discoloration on his face that “can
only best be described as chemical burns[,]” which this
official “blamed ... on the commissary soap” without
providing any treatment. Id. at 83.
On June 4, 2024, corrections officials denied plaintiff's
request for medical treatment during an escort back to his cell.
Compl. at 83-84. After plaintiff returned to his cell, defendant
Area Supervisory Chandler arrived to collect the handcuffs
used during the escort. Id. at 84. Plaintiff explained to this
official that he was in need of medical treatment, showed this
official his injuries, and stated that “the cuffs needed to stay”
so they could be used to escort him to medical. Id. Plaintiff
further stated that he was not refusing to return the handcuffs,
but that he was “being refused medicine [and] treatment.” Id.
In response, defendant Chandler threatened to assault plaintiff
if he did not return the handcuffs then left the area. Id.
At approximately 3:30 p.m., defendants Corrections Officers
Mazzone, Manson, and Hamilton “gave out the dinner trays
[and] refused to take the handcuffs back [from plaintiff]
and feed [him.]” Compl. at 84-85. Although plaintiff's skin
condition continued to worsen, which he showed defendants
Penree, Surgey, and Clapper, these officials refused to provide
him with “medical skin cream” or arrange for him to be seen
by defendant Schrader for roughly one month. Id. at 85.
On June 26, 2024, plaintiff “also had another seizure in the
middle of the night” and experienced “extreme nerve [and]
muscle pain ... down [his] back [and] legs.” Compl. at 86.
Defendant Nurse Jane Doe #1 visited plaintiff at his cell and
“did nothing.” Id.
On July 2, 2024, defendants Corrections Officers Smalls and
Costello “forced” plaintiff to walk up “no less than 25-30
stairs” for a meeting with defendant Tourtelot despite plaintiff
informing these officials of his leg, knee, and foot problems
and “stability issues” and the availability of an elevator.
Compl. at 86-87. Plaintiff then met with defendant Tourtelot,
who “terminated [his] mental health medication,” which also
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helped prevent seizures. Id. at 87. Plaintiff asked defendant
Tourtelot why she was terminating the medication, which
he had been taking since 2016 with only “minor [and] brief
pauses[,]” and she responded, “because I am.” Id. at 87-88.
*11 During this time, defendants Chaudry, Czerwinski,
Schrader, Christopher, Storey, Mosher, and Tourtelot were
meeting weekly to discuss the medical treatment of prisoners,
including plaintiff, and the medications ordered for these
individuals. Compl. at 87. Following plaintiff's meeting with
defendant Tourtelot, defendants Smalls and Costello returned
to escort plaintiff back to his cell. Compl. at 88. As these
officials “tr[ied] to guide the plaintiff toward the stairs” with
his hands cuffed behind his back, plaintiff told them that he
could not walk down stairs without holding a railing. Id. After
defendants Smalls and Costello “insisted on the stairs[,]”
plaintiff asked for a supervisor and was placed “in the area of
the elevator.” Id. at 88-89.
Thereafter, defendants Corrections Officer Ross and
Corrections Sergeant Ferrone arrived at the scene with other
unknown officials and defendant Costello yelled at plaintiff,
called him names and expressed a desire to throw him
down the stairs. Compl. at 89. Defendant Ferrone then told
defendant Ross to “take over the escort” and “insisted” that
plaintiff take the stairs, stating that prisoners were “no longer
allowed to ride the elevator[.]” Id. Plaintiff said “okay” and
“turned to go toward the stairs but was “snatched ... by
the bicept [sic]” and “pulled ... forcefully backwards” by
defendant Ross, “causing plaintiff to instantly collapse to
the ground screaming in pain.” Id. at 89-90. “Plaintiff was
then dragged/carried to a holding cell [and] dropped on the
ground” where he was left “for over 1 hour” before defendants
Penree and Hamilton arrived. Id. at 90.
Defendant Penree told defendant Hamilton to escort plaintiff
back to his cell “as plaintiff ... turned on the floor.” Compl.
at 90. “Plaintiff was then lifted off the floor, still cuffed,
[and] forced to walk to the elevator [and] back to his cell by
[defendant] Hamilton[.]” Id. “[U]nknown officers” executed
the transport by “dragging” plaintiff along while he was
“doubled over” in pain, “unable to fully stand straight up[.]”
Id. Defendants Hamilton and Penree walked together behind
plaintiff, telling him to “keep going” when he stopped and
requested a wheelchair. Id.
On August 19, 2024, plaintiff filed a grievance against
defendants Chaudry, Czerwinski, Storey, Hilton and Penree
based on “ongoing untreated medical problems[.]” Compl. at
91.
Between July and October 2024, and following the
discontinuation of Tegretol by defendant Tourtelot, plaintiff
suffered four seizures. Compl. at 96. Plaintiff's sick call
requests related to these seizures “were thrown out” by
defendants Schrader and Penree. Id. at 96-97. After one of
these seizures, plaintiff was seen by defendant Penree who
did nothing but ask plaintiff what he did to himself. Id. at
97. Following another of these seizures, defendant Nurse Jane
Doe #2 arrived at plaintiff's cell but “[d]id not take vitals or
photos” or undertake “any level of examination” and instead
only prescribed Tylenol. Id.
On a date prior to October 5, 2024, plaintiff was relocated to
a “disability cell with wheelchair accommodations, including
shower access.” Compl. at 92. Following his relocation to this
cell, plaintiff asked defendants Christopher, Hilton, Bishop,
Storey, Fischer, Harris, Laliberte, Chaudry, Czerwinski,
Schrader, Penree, Ferrone, Prisma, Hark, Johnson, Hamilton,
and Russell each to provide him with a shower curtain for
privacy and safety. Id. at 93.
On October 5, 2024, plaintiff slipped and fell while exiting
the shower as a result of water “pooling outside of the shower
area due to no plastic shower curtain.” Compl. at 93. Plaintiff
“hit his head on the metal stools directly outside of the
shower entrance[.]” Id. at 94. The next day, plaintiff showed
defendant Penree his injuries and requested a shower curtain
and injury report. Id. Defendant Penree touched plaintiff's
head, said he would document the injuries, and then denied
his request for imaging. Id.
*12 On October 7, 2024, defendant Penree again refused
plaintiff's request for imaging on his brain. Compl. at 95.
Defendant “CERT Female” was present for this evaluation.
Id. Plaintiff told this official that he was in need of help.
Id. Defendant Hamilton subsequently arrived at the scene to
photograph plaintiff's injuries, but defendant Penree directed
him to limit photographs to plaintiff's head. Id. at 95-96.
Plaintiff asked defendant Hamilton for a shower curtain, and
this official responded that defendant Christopher “told him
not to give them out[.]” Id. at 96.
Later that day, plaintiff spoke with defendant Hark at
the Sergeant's Gallery, and this official told plaintiff that
“he would try” to have photographs taken and an injury
report done correctly because “Penree [and] Hamilton were
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doing some bullshit.” Compl. at 97. However, defendant
Corrections Sergeant Edick “refused” to address these
matters, so “[n]othing was done[.]” Id.
On October 8, 2024, plaintiff delivered defendant Penree
another sick call request and asked that all his injuries be
documented and photographed. Compl. at 97-98. Defendant
Penree refused plaintiff's request. Id. at 98. By this date,
plaintiff “had filed over 12 consolidated medical grievances”
regarding inadequate treatment by defendants Mohammed,
Schrader, Czerwinski, Chaudry, Christopher, Hilton, Bishop,
Storey, Fischer, Harris, Lileberte, Penree, Ferrone, Hamilton,
Prisma, Walker, Johnson, Russell, Reddner, and Hark. Id.
Over the next two months, plaintiff continued to file
grievances and sick call requests regarding inadequate
medical treatment. Compl. at 98-103. At some point
apparently in or around December 2024, defendants Penree
and Schrader “told the plaintiff they wanted to check for
sodium in his urine as a cause for weight loss” and plaintiff
gave defendant Penree a urine sample in a cup. Id. at 106.
About ten days later, plaintiff met with defendants Schrader
and Penree and these officials informed plaintiff that he tested
positive for amphetamines and as a result, would not be
prescribed any medications. Id. Plaintiff “became outraged”
and asked when they performed a drug test and for chain of
custody records. Id. Plaintiff never received a misbehavior
report for drug use or any answers to his questions. Id. at
107. Plaintiff subsequently filed a grievance, but “nothing was
done” to address the false charge. Id.
On December 8, 2024, defendant Corrections Officer Shue
delivered plaintiff a meal tray that contained a banana and
was missing yogurt. Compl. at 111. Plaintiff complained to
defendant Shue about being provided with a food to which he
was allergic – the banana – and being deprived of adequate
nutrition. Id. After a verbal disagreement, defendant Shue left
the area, returned to advise plaintiff that he was not going
to be provided with another meal, and then requested that
plaintiff remove his hands from the open slot in his cell. Id. at
112. Plaintiff then threw an empty cup out of his cell. Id. In
response, defendant Shue “jumped” and radioed for backup,
stating that plaintiff “threw on [him].” Id. at 112-113.
Roughly thirty minutes later, plaintiff was removed from
his cell by defendants Ferrone, Henry, Walker, Corrections
Officer McGraw, and Corrections Lieutenant John Doe, and
he was told by Lieutenant John Doe that he was being placed
in an “OBS” cell on suicide watch. Compl. at 113. Plaintiff
was not suicidal. Id.
Defendants Corrections Sergeant Patek, Henry, Walker, and
McGraw escorted plaintiff to the Mental Health Unit. Compl.
at 113. On the way into the unit, plaintiff walked past
defendant Corrections Officer Gabel, who was holding the
door open. Id. at 114. Once inside, plaintiff “heard all body
cameras being deactivated for audio” and was directed by
defendant Corrections Officer John Doe #1 to stand on the
scale. Id. After plaintiff was weighed, he was escorted to a
“strip cage” where his handcuffs were removed. Id. Defendant
Corrections Officer John Doe #2 directed plaintiff to strip and
he was issued a “suicide smock[.]” Id.
*13 By this time, defendants Walker, Henry, and McGraw
“were all out of site,” but defendants Patek, Gabel, and
Corrections Officers John Doe #1-5 were all nearby. Compl.
at 114-115. Eventually, plaintiff was removed from the cell
by defendants John Doe #1-5 and relocated to a nearby cell.
Id. at 115. Once inside, plaintiff “was immediately punched in
the head, and thereafter repeatedly punched all over his body
while still in handcuffs. Id.
Following the assault, defendant Patek directed defendant
Gabel to “freeze [plaintiff] out as he left” the area. Compl.
at 117. Defendant Gabel then set a box fan inside the open
window near plaintiff's cell and “turned it on full blast.” Id.
Defendant Gabel also turned on a box fan located in a different
window in the back of the cell. Id. Nothing else was in the cell
except a metal bed frame that was covered in feces. Id.
Plaintiff was not given lunch on this date or medications
from defendant Penree, who “came [and] laughed.” Compl. at
118. The next morning, plaintiff was denied “a.m. meds [and]
breakfast.” Id. Over the next three days, each of plaintiff's
meals were either tampered with or denied altogether. Id.
Defendants Corrections Officer Hamlin, Corrections Officer
Rogers, and Corrections Officers John Doe #1-2 provided
plaintiff with meals “sometimes.” Id. The fans also remained
on during most of this three-day period. Id. at 119.
On or around December 11, 2024, defendants Penree and
Corrections Officers John Doe #1-5 visited plaintiff at his
cell, directed him to stand under a light, and then walked off.
Compl. at 119. Over the next two days, plaintiff was deprived
of medication and a dinner meal by defendant Corrections
Officer “John Doe Short Guy[,]” had a water bucket thrown at
him by defendants “John Doe Short Guy” and “John Doe Tall
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Guy,” and had a hose sprayed at him by these same officials.
Id. at 120.
Defendant Short witnessed plaintiff's confinement conditions
between December 8 and December 13, 2024, having walked
past the cell “several times” throughout this period. Compl.
at 121. Defendant Henry also worked one shift when plaintiff
asked for the fans to be turned off and refused the request. Id.
Plaintiff was deprived of his seizure medication while in OBS
by defendants Penree, Brown, and Surgey, and had a seizure
on one occasion. Id. at 121-122.
On December 13, 2024, defendant Rogers provided plaintiff
with blankets and food. Compl. at 121. On or about December
16, 2024, plaintiff was released from OBS. Compl. at 122. At
some point thereafter, plaintiff contacted the Office of Special
Investigations, and an official from this office ordered that
plaintiff receive a medical exam and chest x-ray. Id. However,
defendant Penree “filed false documents” and defendant
Schrader “never did anything” and as a result, “the chest x-
ray was never done.” Id.
On or about December 20, 2024, plaintiff had his second
seizure in ten days. Compl. at 108. Plaintiff was escorted to
the medical unit where defendants Penree and Ferrone were
present. Id. Plaintiff told these officials “about having another
seizure” and defendant Penree “flashed a light into plaintiff's
face while at the same time asking plaintiff about being on
drugs.” Id. Penree did not take any vitals. Id.
Defendant Penree then asked plaintiff to provide a urine
sample, which plaintiff did “on the spot[.]” Compl. at 109.
Days later, defendant Penree stopped by plaintiff's cell during
“med rounds” and “waved a paper” while informing plaintiff
that he “tested positive again[.]” Id.
*14 On or around December 26, 2024, a Tier III disciplinary
hearing was initiated against plaintiff based on the cup
throwing incident that occurred on December 8, 2024. Compl.
at 127. Defendant Laliberte was assigned as the hearing
officer and allowed plaintiff to make an appearance on the
record, after which the hearing was postponed to allow
plaintiff time to receive assistance. Id.
On December 31, 2024, plaintiff met with defendant ORC
Lewis for tier assistance. Compl. at 128. Plaintiff asked
defendant Lewis to gather certain evidence for his hearing.
Id. Later that day, defendant Corrections Sergeant Lamoch
interviewed plaintiff regarding an investigation into plaintiff's
claims of wrongdoing by defendants Penree and Schrader.
Id. Defendant Lamoch noted the “history of problems”
between plaintiff and these officials and stated that he would
take plaintiff for his chest x-ray. Id. at 128-129. However,
defendant Lamoch later told plaintiff that the appointment
was canceled and rescheduled. Id. at 129.
During “mail delivery” on December 31, 2024, plaintiff
received defendant Laliberte's Tier III disposition, which
“falsely” indicated that plaintiff was “removed from the
hearing for bad behavior[.]” Compl. at 129. Defendant
Laliberte found plaintiff guilty of the charges in the
misbehavior report and sentenced him to 180 of confinement
in a special housing unit (“SHU”) cell, along with loss of “all
other privileges.” Id.
Later in the day, plaintiff spoke with defendant Corrections
Sergeant Fann regarding the disciplinary disposition and
this official “agreed it was false.” Compl. at 130.
Plaintiff appealed the disciplinary determination to defendant
Rodriguez. Id. At some point, defendant Rodriguez “modified
the sanctions [but] still ignored the fact that plaintiff's due
process rights were violated by ample evidence [that he]
was deprived [the opportunity] to be present [and] participate
[in]” the hearing. Id. Pursuant to the modification in the
sanction, plaintiff “was still regressed to Phase One in [the]
Step Down Program” and lost contact visits, packages, and
other privileges. Id. at 131.
On January 2, 2025, plaintiff was escorted to a holding pen
where defendants Shue, Penree, and Schrader were located.
Compl. at 123. Plaintiff was seated on a bench, with his hands
cuffed behind his back. Id. Plaintiff asked defendant Schrader
“for an update on all his medical trips [and] sick calls given
to Penree” and Schrader “yelled” at plaintiff in response and
asked what he wanted. Id. After a further negative exchange,
plaintiff “cleared his throat [and] suppressed a cough” and
defendant Schrader “flinched.” Id. at 123-124. Defendant
Shue then “grabbed” plaintiff “by the arm [and] leg, lifted
[him] off the bench [and] threw [him] face first to the ground.”
Id. at 124. Defendant Shue then “drove his knee” into plaintiff
and “pinned it down” on plaintiff's legs, causing him “intense
nerve pain[.]” Id.
At that point, defendant Ross “rushed in the area [and]
clamped leg shackles on [plaintiff then] pressed down on
them full force, holding the pressure [and] position for
over 1 minute[.]” Compl. at 124. Thereafter, defendant
Lamoch arrived at the scene and “ordered the plaintiff to
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be picked upright, which caused intense pain in [plaintiff's]
lower back [and] achiles [sic].” Id. Following this incident,
defendant Shue “falsely accused” plaintiff of spitting on
defendant Schrader, defendants Schrader and Penree each
issued plaintiff false misbehavior reports, and defendants
Ross and Lamoch filed “false reports” to corroborate the other
reports. Id. at 125.
*15 Thereafter, defendant SORC Ciancio conducted a Tier
III disciplinary hearing related to the misbehavior reports
authored by defendants Schrader and Penree. Compl. at 130.
After an adjournment, defendant ORC Everson and another
ORC official met with plaintiff at his cell and defendant
Everson advised plaintiff that a different ORC official was
assigned as his “Tier Assistant[,]” but they were present to
“help[ ]” this person. Id. Plaintiff asked defendant Everson for
an explanation regarding why his assigned assistant was not
present, and why assistance could not wait until this person
returned to work. Id. at 130-131. In response, defendant
Everson “raised her voice” and asked plaintiff whether he
wanted assistance, to which plaintiff responded that he did. Id.
at 131. Plaintiff then requested the information that he sought.
Id.
Defendant Everson told plaintiff that she was not sure how
to obtain the information he sought, asked him to sign
an assistance form, and subsequently informed defendant
Ciancio that plaintiff had “refused assistance.” Compl. at 132.
Thereafter, defendant Ciancio resumed the hearing, denied
plaintiff's request on the record for Tier Assistance, and
ultimately found him guilty of assaulting defendant Schrader.
Id. at 132-134. Defendant Ciancio imposed a sanction that
included 365 days of SHU confinement and loss of good
time credits. Id. at 134. Defendant Ciancio found plaintiff
not guilty of the charges in the misbehavior report authored
by defendant Penree. Id. Plaintiff appealed the disciplinary
determination and “the sanctions were overturned 4 months
later[.]” Id.
On or around January 8, 2025, plaintiff was sent to an outside
facility for an MRI even though he had yet to receive the chest
x-ray to identify whether a metal object was “stuck inside”
him. Compl. at 135. Defendants Corrections Officer Bower
and Corrections Officer Walker were “the CERT escorts” on
this trip. Id.
On April 23, 2025, plaintiff was seen by defendants
Czerwinski and Schrader, who refused to prescribe plaintiff
a brace for his “visibly swollen knee.” Compl. at 137.
Defendant Slate was also present during the evaluation. Id.
On April 24, 2025, plaintiff told defendant Fischer about
defendant Schrader “and his medical staff trying to torture
the plaintiff to death [by] withholding meds [and] nutrition”
and asked about being transferred to another facility. Compl.
at 138-139. Defendant Fischer responded that officials were
“definitely trying to get rid of [plaintiff]” and walked away
without addressing plaintiff's stated concerns. Id. at 139.
The next day, plaintiff spoke with defendant Christopher and
raised the same concerns. Id. Defendant Christoper “deflected
[and] said, ‘will see.’ ” Id.
On or about June 26, 2025, plaintiff was seen by a Neurologist
for a follow-up. Compl. at 232. As of this date, plaintiff
“still had not been prescribed recommended meds for pain
by defendant Schrader,” or received a follow-up “MRI
review[.]” Id. The Neurologist “told the plaintiff he would
emphasize the need for pain medications to be prescribed as
he recommended ... [and] the treatment plan as he outlined[,]”
but defendant Schrader “refused.” Id. Defendant Storey was
present for plaintiff's follow-up and “ignore[d] the plaintiff's
questions about endocrinology medication[ ] orders [and]
other medical records being withheld[.]” Compl. at 256.
On July 5, 2025, plaintiff spoke with defendant Czerwinski
and asked this official when he would receive “medications
for his glands [and] pain” and an MRI. Compl. at 233.
Defendant Czerwinski “smiled [and] winked” and said
she would “tell Schrader again.” Id. As of July 6, 2025,
defendant Schrader had yet to prescribe plaintiff “pain meds
[and] meds for thyroidism, adrenal gland deficiency [and]
hypopituitarism” or schedule him for an MRI follow-up. Id.
3. Food Issues
*16 Upon arriving at Mid-State Correctional Facility in
July 2022, plaintiff “signed for his gluten free medical diet
order[.]” Compl. at 139. Nonetheless, plaintiff was delivered
meals containing gluten. Id.
On July 20, 2022, plaintiff filed a grievance against
defendants Deck and Food Services Cook Bartlett based on
these officials “sending [him] food allergens” and omitting
“protein portions” from his meals every day for almost two
weeks. Compl. at 139. Roughly one week earlier, plaintiff
wrote to defendant Deck about this matter and this official
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confirmed that plaintiff “had not been receiving protein daily
as entitled” but never corrected the issue. Id. at 139-140.
Instead, plaintiff “continued to receive food allergens [and]
cross-contaminated meals” on a daily basis. Id. at 140.
Throughout this time, defendants Matlock, Corrections
Officer Stevens, Corrections Officer Gardner, Ross,
Corrections Officer Dehli, Corrections Officer Hark,
Corrections Officer Martin, Manson, Corrections Officer
Nicholas, Corrections Officer Peters, Corrections Officer
Ferris, Corrections Officer Ward, Smalls, Mazzone,
Corrections Officer Lewis, Lavinski, and Kowalski were
“regular feed-up officer[s]” who served plaintiff foods to
which he was allergic and “refuse[d] regularly” to contact
food services to provide plaintiff with the correct meal.
Compl. at 140-142, 148. In addition, the following officials
were aware during this time that plaintiff was not receiving
proper meals, yet failed to address the issue: defendants
Area Supervisors Hall, Klein, Carpenter, Fuse, Mayo, Bailey,
Chandler, Ferrone, Hamilton, and Lamoch, Administrators
Laliberte, Conrad, and Storey, Chaplain Max, Superintendent
Passage, Social Workers Cole, Russell, and Kallay, Escort
Officers Yaddow and Costello, Counselors Perham, J.
Christopher, Klossner, Fish, and Schiavi, Grievance Program
Supervisor Tapia, and Nurses Banks and Dana. Id. at 143-149.
In addition to raising his concerns with the aforementioned
officials, plaintiff filed “countless grievances” against
defendants Food Services Administrators Deck, Ardo, C.
Zangari, D. Zangari, Galusha, Fear, Ortiz, Bartlett, Townsend,
and Noble. Compl. at 146-147. Each of his grievances were
denied by defendants Tapia, Hilton, Passage, and Seguin. Id.
at 147.
In October 2022, plaintiff “returned to his special Kosher
gluten free diet with Nazarite Jewish accommodations for
no eggs, grapes, [and] vinegar” based on the “non-stop
violations” of his medical diet order. Compl. at 149. By this
time, plaintiff had been served “well over 150 meals with
known allergens[.]” Id.
Between November 2022 and June 2023, plaintiff “was
deprived of his religious meals according to his truly held
beliefs” by defendants Noble, Max, Deck, Ardo, Venettozzi,
Conrad, Passage, and Hilton. Compl. at 150. Plaintiff filed
“countless grievances” and written requests throughout this
time based on being denied Kosher meals. Id. In March 2023,
plaintiff filled out “the Passover Participation Form” and
returned it to defendant Max. Id. at 153. Nonetheless, in April
2023, plaintiff was “denied his ability to observe Passover”
as a result of restrictions imposed on his meals. Id. at 152.
*17 On April 9, 2023, plaintiff filed a grievance regarding
“continuous denials of Passover participation” and other meal
deprivations experienced since October 24, 2022, wherein he
named the following officials as having been involved in this
wrongdoing: defendants Max, Passage, Conrad, Ardo, Noble,
McKoy, Chaudry, Hamilton, Mayo, Klien, Hall, Yaddow, and
“all Food Service cooks.” Compl. at 152-153.
In September 2023, during Rosh Hashanah and Yom Kippur,
plaintiff was provided multiple meals that either contained
foods that violated religious dietary law, foods to which he
was allergic, or foods that were spoiled. Compl. at 161-162.
Plaintiff complained to defendant Max about certain meal
issues, but problems continued. Id. at 162.
Plaintiff's diet, which was a “combination diet ... developed
specifically for [him] ... by defendant Noble ... did not contain
2,800 calories [and] 90 grams of protein per day, which
resulted in insufficient nutrition.” Compl. at 150-151. In
addition, when plaintiff began receiving his Kosher meals, he
was “still given allergens[.]” Id. at 154. As a result, plaintiff
eventually “revert[ed] to his medical diet when it was safe to
do so, as he tried to work a solution.” Id. at 151.
At some point in 2024, plaintiff was “served spoiled food for
over 10 days[.]” Compl. at 157. Defendants Smalls, Johnson,
Ferrone, Hamilton, Chandler, Mazzone, Hamlin, Shue, Hark,
Worden, Ward, and Ross “served these meals” and “failed
to ensure corrections.” Id. During Passover that same year,
plaintiff was entirely deprived of adequate nutrition. Id. at
163-164.
4. Step-Down Program
The Step-Down Program is “operated” by a Program
Management Team (“PMT”), which is “comprised of
security, counselors, social workers, and members of the
Executive Team (Administration and the Superintendent),
and these officials “meet at least twice per week to discuss
prisoner [and] program plans” and “progress.” Compl. at 166.
The following officials are members of the PMT: defendants
Passage, Hilton, Burns, Venettozzi, Bishop, Storey, Laliberte,
Fischer, Harris, Murphy, J. Christopher, Kallay, Perham,
Dorchester, Klossner, Schiavi, Ajukik, Brown, Everson,
Hosma, Mayo, Chandler, Ferrone, Hamilton, Klien, and
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Hall. Id. at 167. From the time plaintiff arrived at Mid-
State Correctional Facility through 2025, the PMT deprived
him of “at least 4 hours of out-of-cell programming every
day,” in violation of the HALT Act. Id. at 167-168. The
PMT also deprived plaintiff of other privileges, such as
contact visits without restraints and access to packages
and certain personal property, in violation of the HALT
Act. Id. at 168. PMT officials “used negative informational
reports” as an “alternative to misbehavior reports[,]” through
which sanctions were “relentlessly” imposed against plaintiff
without him being afforded a hearing to dispute the alleged
wrongdoing. Id. at 169.
In or around late September 2022, plaintiff learned that an
inmate named “Bradley” with whom he had a negative history
had been transferred to Mid-State Correctional Facility.
Compl. at 171. Plaintiff informed defendant Perham about
the issue and asked to be kept away from this inmate. Id.
Defendant Perham agreed to raise the issue at the next PMT
meeting, and thereafter informed plaintiff that PMT officials
would not separate him from another inmate because “the
program is designed to keep [prisoners] with [their] enemies
[and] teach [them] how to get along.” Id. Plaintiff expressed
his view that he would not be able to get along with this
inmate, and defendant Perham responded that the PMT had
“made its decision.” Id.
*18 Thereafter, PMT officials “decided to put Bradley in
the same class with the plaintiff [and] set it up for plaintiff
[and] Bradley to sit next to each other[.]” Compl. at 172. In
an effort to “repell [sic] any attacks possible” plaintiff “put
spoiled milk [and] powder[ed] coffee into a toothpaste [tube]
for protection[.]” Id.
On October 13, 2022, plaintiff entered a classroom and was
initially “shackled [and] handcuffed” to a restraint chair, but
his handcuffs were removed before Bradley entered. Compl.
at 172-173. Once Bradley entered the room and was seated
and shackled to his chair, plaintiff “expelled the spoiled
milk in Bradley[’s] direction[.]” Id. at 173. From outside the
classroom, defendants Luther, Kallay, and “several officers”
watched plaintiff and Bradley argue, with Bradley spitting on
plaintiff. Id. Defendant Annarino “cheered Bradley on.” Id.
Plaintiff yelled for security to remove him from the room,
but nobody intervened. Id. Plaintiff then “threw his boot at
Bradley [and] was allowed to attack Bradley” while Bradley
was restrained. Id.
Following the incident, defendant Mayo escorted plaintiff
back to his cell and stated that he “hate[s]” Bradley, while
praising plaintiff for his role in the altercation. Compl. at
174. Thereafter, plaintiff was issued a Tier III misbehavior
report. Id. Defendant J. Christopher, who was “in charge of
assigning prisoners to their classrooms [and] put Bradley with
the plaintiff,” designated herself as plaintiff's hearing officer.
Id.
At the conclusion of the disciplinary hearing, defendant
Christopher found plaintiff guilty of all charges and imposed
sanctions that included 720 days of SHU confinement, loss
of all privileges, and six months loss of good time credits.
Compl. at 175. Thereafter, plaintiff filed a state court Article
78 petition. Id. at 176. Defendants Passage, Burns, Venettozzi,
J. Christopher, Fischer, Conrad, and Rodriguez “all refused to
turn over the video footage of the incident[,]” which officials
“allowed to play out for no less than 30 minutes without any
attempt to enter the classroom.” Id.
On February 9, 2024, the state court issued a Decision and
Order reversing the SHU sanction and remitting the matter
for a rehearing consistent with the provisions of the HALT
Act. Compl. at 176-177. On March 1, 2024, a rehearing
commenced before defendant Hearing Officer Barbosa. Id.
at 177. At the conclusion of the hearing, defendant Barbosa
found plaintiff guilty of all charges and sentenced him to
545 days of SHU confinement, along with 4 months loss of
good time credits and loss of privileges for 365 days. Id.
at 177-178. Defendant Hilton then undertook a discretionary
review of the determination at plaintiff's request and reduced
the confinement sanction to 365 days. Id. at 178.
On May 31, 2024, an attorney filed an administrative appeal
on plaintiff's behalf, which was submitted to defendant
Rodriguez. Compl. at 178. On June 18, 2024, defendant
Rodriguez “reviewed [and] affirmed the hearing disposition.
Id. Counsel then filed a second Article 78 petition. Id.
Eventually, defendant DOCCS Commissioner Martuscello
“expunged the unlawful SHU sanctions” and the Article 78
petition was dismissed as moot. Id.
As a result of plaintiff's role in the incident with Bradley
on October 13, 2022, defendant J. Christopher “gave orders
to PMT staff” and defendant Kallay specifically “to violate
plaintiff's attorney/client ... rights by putting his legal calls
on speaker phone for PMT staff to listen in.” Compl.
at 179. Plaintiff's attorney sent an email to defendant
Kallay expressing concerns regarding this practice, which
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defendant Kallay forwarded to defendant Christopher. Id.
Defendant Christopher then “fabricated a de facto policy
[and] procedure” to justify this conduct. Id.
*19 On November 8, 2022, defendants Perham and Kallay
placed plaintiff's legal call with his attorney on speaker phone
as “PMT staff stood outside the door listening [and] watching
plaintiff[.]” Compl. at 180. Defendants Perham and Kallay
advised plaintiff that his call was being handled in this matter
based on “the new rule ... from defendant J. Christopher.”
Id. Following this call, plaintiff's attorney again emailed
the facility regarding “her concerns.” Id. Defendant Burns
responded to the email “fabricating the de facto policy[.]” Id.
Thereafter, plaintiff “had numerous additional legal calls
placed on speaker[,]” which were “monitored by PMT staff
[and] Kallay.” Compl. at 180. Plaintiff verbally notified
defendants Passage and Venettozzi about this issue, yet
they “did nothing to stop [it.]” Id. at 181. Plaintiff also
filed grievances against all members of the PMT regarding
this matter. Id. Eventually, “court intervention” ended the
“tactic[.]” Id.
From there, PMT officials “moved to another tactic” of “[n]ot
allowing plaintiff out for programs [and] filing false refusals,
while keeping plaintiff excessively confined 24/7 for many
months non-stop.” Compl. at 181. Between 2022 and 2024,
defendant Hughes, “an office assistant for PMT staff,” was
responsible for filing the majority of these “false refusals[.]”
Id. at 182. However, defendant Hughes never interacted with
plaintiff or made rounds in his housing area. Id. The refusals
resulted in “false ‘negatives’ ” that plaintiff was unable
to challenge, and for which he received “sanctions” that
included a 30-day extension in Phase One of the Step-Down
Program, “phone/education tablet restrictions,” loss of food
commissary privileges, and restrictions on programming. Id.
Between “late October/early November 2022 [and] April 17,
2023,” and apparently as a result of the aforementioned “false
negatives,” plaintiff was denied out-of-cell programming and
group activities with PMT staff. Compl. at 182. Throughout
this time, “[n]o security PMT escorts ever [visited] plaintiff's
cell for him to attend” and it was therefore impossible for him
to ever refuse attendance. Id.
On April 17, 2023, defendant Christopher “finally agreed
to let plaintiff out for programs.” Compl. at 183. However,
defendant Christopher placed plaintiff in the morning class,
despite the PMT previously agreeing to allow plaintiff to
participate in “p.m. classes for medical reasons[,]” and inmate
Bradley being in this class. Id.
After plaintiff “made verbal complaints daily to PMT staff on
rounds,” he was told that defendant Christopher had placed
him on a list to meet with PMT staff on April 21, 2023, to
“discuss all issues.” Compl. at 183. Sometime on the morning
of April 21, 2023, plaintiff “secured protection for defense
with a soap in a sock for his own safety, knowing the staff set
up assaults.” Id. At some point thereafter, plaintiff “went to
meet with PMT[.]” Id.
Plaintiff arrived at a “waiting class” where other prisoners
were also waiting to meet individually with PMT staff.
Compl. at 183. Plaintiff “was secured in [a] restart chair
shackled [but] unhandcuffed[.]” Id. “As plaintiff was waiting,
Bradley was escorted into class” and “seated in the next chair
by the plaintiff,” at which time he stated, “my turn.” Id.
“Plaintiff then swung the soap in a sock at Bradley twice
[and] security intervened.” Id. at 183-184. Plaintiff believes
that PMT officials “forced Bradley onto [him] for retaliatory
motives[.]” Id. at 184.
Following this incident, plaintiff was issued a misbehavior
report by defendant Mayo. Compl. at 184. Defendant Mayo
was the official responsible for escorting inmates to PMT
meetings and was aware of plaintiff's prior altercation with
Bradley. Id. at 184-185.
*20 Defendant Storey was assigned as the hearing officer
for plaintiff's disciplinary hearing. Compl. at 185. At the
conclusion of the hearing, defendant Storey found plaintiff
guilty of all charges and sentenced him to six months of
SHU confinement. Id. Plaintiff appealed the disciplinary
determination to defendant Rodriguez, who “affirmed” the
decision. Id.
As a result of being denied access to programming and
receiving the imposed disciplinary sanctions, plaintiff was
“not able to progress” through the Step-Down Program and
was instead “restricted to Phase One for nearly 2 years,
or more” even though “Phase One is only a 6-week stage/
phase[.]” Compl. at 187-188. Throughout this time, plaintiff
did not receive adequate access to “food, clothing, [or]
footwear[.]” Id. at 188.
On September 29, 2023, defendant Fischer responded in
writing to a complaint made by plaintiff asking this official
to review video and audio footage from the Step-Down
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Program showing that plaintiff was “not being allowed to
attend” programming. Compl. at 189-190. Defendant Fischer
“refused to review [the] footage” and responded in writing
to plaintiff that he was not allowed to attend afternoon
programming based on him “giv[ing] the PMT the impression
during rounds that [he is] under the influence of an intoxicant
in the afternoons[.]” Id. at 190.
On October 1, 2023, beginning at around 3:00 a.m., defendant
Corrections Officer Stevenson verbally harassed plaintiff
during rounds, calling him racial slurs, “loudly” accusing
him of “touch[ing] lil kids” so that other prisoners could
hear, making sexual gestures at plaintiff, and kicking his
cell door. Compl. at 193-194. Plaintiff filed a grievance and
“PREA complaint” against defendant Stevenson. Id. at 194.
Following this incident, other prisoners “began asking the
plaintiff about his criminal case[.]” Id. Defendant Laliberte
“denied the PREA complaint” and defendants Tapia, Hilton,
and Seguin denied plaintiff's grievance, all refusing to review
video footage of the incident. Id.
As a result of defendant Stevenson's actions, other prisoners
searched public records and learned from a public court
filing that plaintiff “spoke to detectives about a homicide
case focused on plaintiff being the shooter[.]” Compl. at 195.
Thereafter, plaintiff was “labeled a snitch” throughout the
Step-Down Program. Id.
On December 26, 2023, “a group of gang members [and]
their associates conspired to manipulate staff into moving
the plaintiff to ... [a] chaotic [housing area] designated for
problematic prisoners” by holding their feed-up hatches open
and telling defendants Johnson, Ross, Ferrone, and Dehli
that they would not remove their hands until plaintiff is
relocated. Compl. at 196-197. After speaking with these
inmates, defendant Johnson stopped at plaintiff's cell with
defendant Ross to inform him that he was being relocated
and advise him to pack his belongings. Id. at 197. However,
plaintiff “demanded to be left alone” and, after speaking with
defendant Ferrone, the move was stopped. Id.
On December 28, 2023, plaintiff returned to his cell from
an outside trip to find it “in total chaos[,]” having been
searched and ransacked by defendants Johnson and Dehli.
Compl. at 197-198. Plaintiff's legal materials were “clearly
read by staff” and some of those materials were “taken or
thrown away, along with personal property[.]” Id. at 198.
As plaintiff attempted to “regroup mentally[,]” defendants
Johnson and Theo arrived to escort him to a meeting with
defendant Chandler. Id. at 199.
*21 Plaintiff met with defendant Chandler in a hearing
room, where he was informed that he would be moved to
another gallery based on complaints from other inmates.
Compl. at 200. Thereafter, plaintiff was relocated to cell
C1-12, which was filthy and reeked of raw sewage. Id. at 201.
Plaintiff later learned that the sink in the cell was intentionally
clogged by defendant Ross. Id. at 202. Plaintiff spent that
night in a different cell so that the sink could be unclogged. Id.
On the morning of December 29, 2023, plaintiff was returned
to his new cell, but the sink was still broken, and the “horrible
smell” remained even though defendant “Maintenance Man
Slim alleged he fixed it all.” Compl. at 202. 7 Plaintiff
remained housed in this cell without access to water until
January 8, 2024, when he was “removed for 3 hours while
the sink was worked on.” Id. The sink “remained broken” for
roughly another week. Id.
7 On October 27, 2025, the Court received a letter
from plaintiff identifying this individual as “Mr.
Dutcher.” Dkt. No. 23.
Over the next fourteen months, plaintiff continued to be
deprived of out-of-cell activities. Compl. at 203-205.
On December 31, 2024, defendant Penree threatened plaintiff
with future harm and broke plaintiff's feed-up hatch. Compl.
at 205. Defendant Dutcher subsequently retrieved the feed-up
hatch but ignored plaintiff's request to put it back on. Id.
On January 3, 2025, defendants Henry, Ross, Dehli, and
Murphy “conspired” to relocate plaintiff to “a filthy,
damaged, cold cell” with a broken shower and clogged heat
vent, that also did not have a working door hatch. Compl. at
206. Defendants Christopher, Lamoch, Chandler, Fuse, and
Fann were all shown the damages within this cell, yet “refused
to help.” Id. at 207. Plaintiff “was left trapped in [this] filthy,
cold, broken cell” until April 2025. Id.
“The cell manipulation system was used by PMT against the
plaintiff by housing him in filthy, disgusting cells without
functional plumbing[,]” and surrounded by cellmates with
mental health issues, as a method of retaliation. Compl. at
210-211.
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5. Law Library and Package Issues
Between July 2022 and 2025, plaintiff was deprived of
adequate access to the law library and related privileges
and services. Compl. at 212-213. For example, plaintiff
was deprived of a law library tablet for at least two years.
Id. Defendants Passage, Mayo, Klien, Fischer, Hilton, and
the other PMT staff members were each involved in these
deprivations. Id. Plaintiff's ability to litigate civil matters was
“severely hindered” as a result of inadequate law library
services. Id. at 215-217. Plaintiff believes he “lost” two civil
cases brought in the New York Court of Claims as a result of
“being unable to prepare for trial in 2024[.]” Id. at 219.
On July 25, 2023, defendant Package Room Officer Walhby
gave defendant Corrections Officer Schultz a package of
books purchased for plaintiff by his family. Compl. at
219. Although six books were purchased, plaintiff was
only provided with five. Id. Thereafter, defendant Walhby
“repeatedly reject[ed]” legal books delivered for plaintiff,
tampering with plaintiff's mail in response to his grievances
and complaints. Id. at 220-222.
Between May 31 and July 30, 2024, defendant Hamilton
destroyed packages mailed to plaintiff containing toothpaste
and soap. Compl. at 223. Plaintiff was also deprived
of other packages by other officials. Id. at 223-225.
Eventually, plaintiff “beg[ged]” defendants Penree, Schrader,
Czerwinski, Chaudry, Storey, Hilton, and Christopher to
“make medical staff ... provide treatment [and] Dove soap for
visible rashes [and] chemical burns” on plaintiff's body. Id. at
225. These officials “refused to intervene[.]” Id.
6. Mental Health Services
*22 Between 2024 and the summer of 2025, defendant
Social Worker Cole “refus[ed] to allow plaintiff access
to [out-of-cell] therapy sessions” and “facilitated plaintiff's
OMH level being changed from a two up to a level four[.]”
Compl. at 256-257.
Defendants Christopher, Tourtelot, Cole, Czerwinski,
Schrader, Chaudry, and Mosher were members of a Joint Case
Management Committee (“JCMC”), which met weekly to
discuss mental health services provided to inmates, including
plaintiff. Compl. at 257. The JCMC “targeted” plaintiff's
“OMH meds[,]” sometimes changing them and other times
stopping them in response to treatment complaints made by
plaintiff. Id. at 257-258.
Defendant Office of Mental Health Commissioner Sullivan,
along with DOCCS Commissioner Martuscello, former
DOCCS Commissioner Annucci, and defendants McCoy,
Venettozzi, and Rodriguez, allowed plaintiff to be housed in
solitary confinement, despite his mental health needs and the
requirements of the HALT Act. Id. at 258-259. Defendant
Sullivan worked with defendants Annucci and Martuscello to
narrowly define “serious mental illness” to “a small number
of specific diagnoses” to avoid limitations on restrictive
confinement imposed by the HALT Act. Id. As a result,
plaintiff's “mental health disability diagnoses” did not exclude
him from restrictive confinement. Id.
Defendants Martuscello and Annucci have also “led DOCCS
to continue ... use of disciplinary confinement in a manner
that HALT ‘clearly prohibits.’ ” Compl. at 271. Defendants
Hilton and Passage have also failed to implement “necessary
reforms” within Mid-State Correctional Facility to comply
with the HALT Act, and “restore basic human rights” to
plaintiff and others similarly situated. Id. at 272.
7. “Illegal Strike” Issues
Beginning in February 2025, corrections officials employed
at various DOCCS facilities, including several of the named
defendants, “began an illegal strike,” with their “central
demands” being “repeal of HALT [and] increased wages.”
Compl. at 275-277. As a result of the strike, defendant
Martuscello unlawfully suspended unidentified aspects of the
HALT Act. Id. at 276-278.
On February 23, 2025, plaintiff asked National Guard
Officer Nader (not a party) to collect food containers in
his cell because they were “stacking up” and “drawing [in]
rodents [and] insects[.]” Compl. at 278. Hours later, plaintiff
“reminded National Guard members of trash pickup[,]”
and in response, defendant National Guard Officer John
Doe sprayed the inside of plaintiff's cell “with a pressure
washer firehose ... for several minutes through the feed-up
hatch, destroying plaintiff's legal documents, books, clothes,
pictures, [and] property.” Id. Plaintiff was also sprayed with
the water, which “caused him to slip [and] fall [and] injure his
knee [and] back.” Id. at 279.
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The destruction of plaintiff's legal materials “has hindered
plaintiff[’s] civil litigations for other matters[.]” Compl. at
279. As a result of the “illegal strike,” plaintiff was also
“fed food allergens daily for weeks” and has been forced
to remain in segregated confinement “for longer than 17
hours per day.” Id. at 279-280. Defendant Martuscello's
suspension of the HALT Act resulted in plaintiff's loss of daily
out-of-cell programming and recreation and “[b]eing denied
medications.” Id. at 280.
*23 The following defendants participated in the “illegal
strike”: Murphy, Storey, Fischer, Harris, J. Christopher,
Laliberte, Tapia, Ardo, Seguin, Noble, Chaudry, Max,
Czerwinski, Graveline, Barbosa, SORC Stnaley, Kallay,
Tourtelot, Cole, Mosher, Springer, Bartlett, Townsend,
Schrader, Penree, Ortiz, Fear, Galusha, C. Zangari, D.
Zangari, Ciancio, Surgey, Klossner, Fish, Schiavi, Perham,
Luther, Dorchester, Everson, Ajukik, Hall, Klien, Carpenter,
Fuse, Mayo, Bailey, Ferrone, Hamilton, Chandler, Fann,
Lamoch, Orcutt, Annarino, Nicholas, Johnson, Ward,
Worden, Dehli, Gardner, Hilton, Martuscello, McCoy, Ross,
Reddner, Pope, Martin, Mattlock, Hark, Lavinski, Kowalski,
Corrections Officer Lewis, Ferris, Peters, Yaddow, Castello,
Banks, Shue, Prisma, Smalls, Fabbio, Jacob, Dowsland,
Moss, Schultz, Theo, Patek, Gabel, Hughes, Hamlin, Henry,
Walhby, Mazzone, Walker, Stevens, Stephenson, Bower #1,
Bower #2, Rogers, Short, Brown, Hosma, Dundden, and ORC
Lewis. Compl. at 289-90.
8. Other Post-Strike Issues
On May 4, 2025, defendant Corrections Sergeant Moss
“refused to correct another allergen meal” delivered to
plaintiff after he asked her to call Food Services. Compl.
at 236. In response, plaintiff “threw a milk out of his cell
in the opposite direction of Moss.” Id. at 237. Defendant
Moss subsequently issued plaintiff a misbehavior report for
the incident and a negative informational report. Id.
Defendant Ciancio conducted plaintiff's disciplinary hearing
on May 21, 2025. Compl. at 237. Plaintiff objected to this
official serving in this capacity based on him previously
imposing an “unlawful SHU sanction” against plaintiff and
denying plaintiff adequate due process when he served as
a hearing officer in an earlier disciplinary hearing. Id. At
the conclusion of the hearing, defendant Ciancio imposed an
“excessively harsh sentence” that included loss of package,
phone, tablet, commissary, and property privileges for 120
days and six months loss of good time credits. Id. at 238-239.
On June 2, 2025, plaintiff spoke with defendant Christopher
during rounds and asked for an update related to his
medication and “nutritional needs” and reminded her that
it had been “over 12 months” since she told him she was
“looking into it[.]” Compl. at 233. Plaintiff then stated that he
was “filing a lawsuit.” Id. Thereafter, defendant Christopher
authored “two false reports” charging plaintiff with making
threats, a misbehavior report, and a negative informational
report, which resulted in PMT staff sanctioning plaintiff with
loss of food packages. Id. at 234. Defendant SORC Stanley
also found plaintiff guilty of the charges in the misbehavior
report and sentenced him to 120 days of SHU confinement,
120 days loss of good time credits, and loss of various
privileges for 120 days. Id.
Defendant Stanley failed to conduct the hearing in a timely
manner, denied plaintiff access to an employee assistant and
certain video footage, and denied plaintiff the opportunity
to question his own witness or be present during that
questioning, or call as a witness the officer identified by
defendant Christopher as having been present during the
events at issue. Compl. at 235. Plaintiff was also not allowed
to be present during, and participate in, the hearing. Id. at
236. Plaintiff's appeal was pending as of the filing date of this
complaint. Id.
Liberally construed, the complaint asserts the following
claims against the named defendants: (1) First Amendment
retaliation claims against defendants Schrader and Penree
based on falsely charging him with wrongdoing in response
to his engagement in protected activity (“First Retaliation
Claim”); (2) First Amendment retaliation claims against
defendants Chandler, Mazzone, Manson, Hamilton, Penree,
Surgey, Clapper, and Schrader based on depriving plaintiff of
treatment needs in response to his engagement in protected
activity (“Second Retaliation Claim”); (3) First Amendment
retaliation claims against defendants Chaudry, Czerwinski,
Schrader, Dana, Clapper, Candy Hayes, Banks, and Brown
based on failing to update plaintiff's medical files in response
to his engagement in protected activity (“Third Retaliation
Claim”); (4) First Amendment retaliation claims against the
PMT members based on listening to plaintiff's calls with
his attorney in response to his engagement in protected
activity (“Fourth Retaliation Claim”); (5) First Amendment
retaliation claims against the PMT members based on the
imposition of “negative informationals” and “false refusals”
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against plaintiff in response to his engagement in protected
activity (“Fifth Retaliation Claim”); (6) First Amendment
retaliation claims against the PMT members based on the
“cell manipulation system” imposed against plaintiff in
response to his engagement in protected activity (“Sixth
Retaliation Claim”); (7) First Amendment retaliation claims
against defendants Walhby and Hamilton based on depriving
plaintiff of access to packages in response to his engagement
in protected activity (“Seventh Retaliation Claim”); (8)
First Amendment retaliation claims against the JCMC
members based on depriving plaintiff of access to adequate
mental health treatment in response to his engagement in
protected activity (“Eighth Retaliation Claim”); (9) a First
Amendment retaliation claim against defendant Christopher
based on issuing plaintiff “false reports” on June 2, 2025
in response to his engagement in protected activity (“Ninth
Retaliation Claim”); (10) First Amendment access-to-courts
claims against the PMT members based on plaintiff's
lack of access to the law library and legal services; (11)
First Amendment mail tampering claims against defendants
Walhby and Hamilton based on depriving plaintiff of access to
packages; (12) First Amendment free exercise claims against
defendants Mohammed, Abdelwahab, Noble, Max, Deck,
Ardo, Venettozzi, Conrad, Passage, Hilton, McKoy, Chaudry,
Hamilton, Mayo, Klien, Hall, Yaddow, and Tapia based on
depriving plaintiff of access to religious meals; (13) a Fourth
Amendment unlawful cell search claim against defendants
Johnson and Deli based on the events of December 28, 2023;
(14) Fourth Amendment privacy claims against the PMT
members based on preventing plaintiff from having private
communications with his attorney; (15) Eighth Amendment
excessive force claims against defendants Ross and Hamilton
based on the events of July 2, 2024 (“First Excessive Force
Claim”); (16) Eighth Amendment excessive force and failure-
to-intervene claims against defendants Patek, Gabel, and
Corrections Officers John Doe #1-5 based on the events
of December 8, 2024 (“Second Excessive Force Claim”);
(17) Eighth Amendment excessive force and failure-to-
intervene claims against defendants Shue, Penree, Schrader,
Ross, and Lamoch based on the events of January 2, 2025
(“Third Excessive Force Claim”); (18) Eighth Amendment
medical indifference claims against defendants Czerwinski,
Aiken, Schrader, Chaudry, Kallay, Dana, Surgey, Jennifer
Christopher, Candy Hayes, Christopher Hayes, Hoffman,
LaCoppola, Nurse Jane Doe, Russell, Paladino, Dana,
Hilton, Fischer, Harris, Storey, Fish, Kallay, Dorchester,
Perham, Czerwinski, Schrader, Penree, Chaudry, Clapper,
Abdelwahab, Schiavi, Tourtelot, Costello, Yaddow, Ross,
Hall, Klien, Mayo, Chandler, Hamilton, Dundden, Johnson,
Carpenter, Bishop, Rosario, Murphy, and Tapia based on
interference with medical visits (“First Medical Indifference
Claim”); (19) Eighth Amendment medical indifference
claims against defendants Brown, Paladino, Czerwinski,
Tapia, and Hilton based on failing to update plaintiff's medical
proxy (“Second Medical Indifference Claim”); (20) Eighth
Amendment medical indifference claims against defendants
Chaudry, Czerwinski, Schrader, Dana, Clapper, Candy Hayes,
Banks, and Brown based on failing to update plaintiff's
medical files (“Third Medical Indifference Claim”); (21)
Eighth Amendment medical indifference claims against
defendants Chaudry, Czerwinski, Schrader, J. Christopher,
Storey, Mosher, Mohammed, Abdelwahab, Hilton, Bishop,
Fischer, Harris, Lileberte, Penree, Aiken, Ferrone, Hamilton,
Prisma, Walker, Johnson, Russell, Reddner, Slate, Hark,
Christopher Hayes, Candy Hayes, Chandler, Mazzone,
Manson, Surgey, Clapper, and Tourtelot based on failing
to adequately address plaintiff's medical needs (“Fourth
Medical Indifference Claim”); (22) Eighth Amendment
medical indifference claims against defendants Tourtelot,
Schrader, Penree, Ferrone, Nurse Jane Doe #1, Nurse
Jane Doe #2 based on failing to adequately address
plaintiff's seizures (“Fifth Medical Indifference Claim”);
(23) Eighth Amendment medical indifference claims against
defendants Smalls, Costello, Tourtelot, Ferrone, Ross,
Hamilton, and Penree based on the events of July 2,
2024 (“Sixth Medical Indifference Claim”); (24) Eighth
Amendment medical indifference claims against defendants
Hark, Hamilton, Penree, CERT Female, and Edick based
on failing to document plaintiff's injuries from a slip-and-
fall incident in October 2024 (“Seventh Medical Indifference
Claim”); (25) Eighth Amendment medical indifference
claims against defendants Ferrone, Henry, Walker, McGraw,
Shue, Patek, Gabel, Corrections Lieutenant John Doe, Penree,
Brown, and Surgey based on placing plaintiff in an OBS
cell and depriving him of access to adequate care in
December 2024 (“Eighth Medical Indifference Claim”); (26)
Eighth Amendment medical indifference claims against the
JCMC members based on depriving plaintiff of access
to adequate mental health treatment (“Ninth Medical
Indifference Claim”); (27) Eighth Amendment medical
indifference claims against defendants Sullivan, Martuscello,
Annucci, McCoy, Venettozzi, and Rodriguez based on
placing plaintiff in restrictive confinement despite his mental
health needs (“Tenth Medical Indifference Claim”); (28)
Eighth Amendment medical indifference claims against
defendants Deck, Matlock, Stevens, Gardner, Ross, Dehli,
Hark, Martin, Manson, Nicholas, Peters, Ferris, Ward, Smalls,
Mazzone, Corrections Officer Lewis, Lavinski, Kowalski,
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Area Supervisors Hall, Klein, Carpenter, Fuse, Mayo, Bailey,
Chandler, Ferrone, Hamilton, Lamoch, Administrators
Laliberte, Conrad, Storey, Chaplain Max, Superintendent
Passage, Social Workers Cole, Russell, Kallay, Yaddow,
Costello, Perham, J. Christopher, Klossner, Fish, Schiavi,
Tapia, Nurses Banks and Dana, Ardo, C. Zangari, D. Zangari,
Galusha, Fear, Ortiz, Bartlett, Townsend, Noble, Hilton,
Moss, Passage, and Seguin based on depriving plaintiff of
his medical diet (“Eleventh Medical Indifference Claim”);
(29) Eighth Amendment failure-to-protect claims against
defendants Christopher, Hilton, Bishop, Storey, Fischer,
Harris, Laliberte, Chaudry, Czerwinski, Schrader, Penree,
Ferrone, Prisma, Hark, Johnson, Hamilton, and Russell
based on failing to provide plaintiff with a shower curtain
(“First Failure-to-Protect Claim”); (30) Eighth Amendment
failure-to-protect claims against the PMT members and
defendants Luther and Annarino based on failing to
separate plaintiff and inmate Bradley (“Second Failure-
to-Protect Claim”); (31) Eighth Amendment harassment
and failure-to-protect claims against defendants Stevenson,
Laliberte, Tapia, Hilton, and Seguin based on the events
of October 1, 2023 (“Third Failure-to-Protect Claim”); (32)
Eighth Amendment failure-to-protect claims against various
defendants for participating in a labor strike (“Fourth Failure-
to-Protect Claim”); (33) Eighth Amendment conditions-
of-confinement claims against defendants Hilton, Passage,
and the PMT members based on maintaining plaintiff
in the Step-Down Program for over three years and
restricting out-of-cell programming (“First Conditions-of-
Confinement Claim”); (34) Eighth Amendment conditions-
of-confinement claims against defendants Smalls, Johnson,
Ferrone, Hamilton, Chandler, Mazzone, Hamlin, Shue,
Hark, Worden, Ward, and Ross based on serving plaintiff
spoiled meals (“Second Conditions-of-Confinement Claim”);
(35) Eighth Amendment conditions-of-confinement claims
against defendants J. Christopher and Fischer based
on denying plaintiff access to out-of-cell programming
(“Third Conditions-of-Confinement Claim”); (36) Eighth
Amendment conditions-of-confinement claims against
defendants Patek, Gabel, Penree, Patek, Gabel, Hamlin,
Rogers, Short, Henry, Corrections Officers John Doe #1-5,
John Doe Short Guy and John Doe Tall Guy based
on plaintiff's OBS cell conditions (“Fourth Conditions-of-
Confinement Claim”); (37) Eighth Amendment conditions-
of-confinement claims against defendants Chandler, Ross,
Henry, Dehli, Murphy, Christopher, Lamoch, Fuse, Fann,
and Dutcher based on plaintiff's cell conditions between late
December 2024 and early January 2025 (“Fifth Conditions-
of-Confinement Claim”); (38) an Eighth Amendment
conditions-of-confinement claim against defendant National
Guard Officer John Doe based on the events of
February 23, 2025 (“Sixth Conditions-of-Confinement
Claim”); (39) an Eighth Amendment conditions-of-
confinement claim against defendant Martuscello based on
his suspension of certain out-of-cell privileges during the
labor strike (“Seventh Conditions-of-Confinement Claim”);
(40) Fourteenth Amendment disciplinary due process claims
against defendants Passage, Burns, Venettozzi, J. Christopher,
Fischer, Conrad, Rodriguez, Barbosa, and Hilton arising out
of the events of October 13, 2022, and related disciplinary
hearing (“First Disciplinary Due Process Claim”); (41)
Fourteenth Amendment disciplinary due process claims
against defendants Mayo, Storey, and Rodriguez arising out
of the April 2023 incident involving defendant Bradley and
the related disciplinary hearing (“Second Disciplinary Due
Process Claim”); (42) Fourteenth Amendment disciplinary
due process claim against defendants Laliberte, Rodriguez,
and ORC Lewis arising out of plaintiff's disciplinary
hearing in December 2024 (“Third Disciplinary Due Process
Claim”); (43) Fourteenth Amendment disciplinary due
process claims against defendants Ciancio, Everson, Shue,
Schrader, Penree, Ross and Lamoch arising out of the
events of January 2, 2025, and the related disciplinary
hearing (“Fourth Disciplinary Due Process Claim”); (44)
Fourteenth Amendment disciplinary due process claims
against defendants Moss and Ciancio arising out of the
events of May 4, 2025, and the related disciplinary
hearing (“Fifth Disciplinary Due Process Claim”); (45)
Fourteenth Amendment disciplinary due process claims
against defendants Christopher and Stanley arising out of the
events of June 2, 2025, and the related disciplinary hearing
(“Sixth Disciplinary Due Process Claim”); (46) Fourteenth
Amendment due process claims against defendants Ferrone,
Henry, Walker, McGraw, Shue, Patek, Gabel, and Corrections
Lieutenant John Doe based on placing plaintiff in an OBS
cell in December 2024 without a hearing; (47) Fourteenth
Amendment due process claims against the PMT members
and defendant Hughes based on the imposition of “negative
informationals” and “false refusals” that resulted in the denial
of privileges without a hearing; (48) Fourteenth Amendment
destruction of property claims against defendants Johnson
and Deli based on the events of December 28, 2023;
(49) Fourteenth Amendment destruction of property claims
against defendants Walhby, Schultz, and Hamilton based on
depriving plaintiff of access to packages; (50) Fourteenth
Amendment medical privacy claims against defendants
Mohammed, Ferguson, and Schrader; (51) Fourteenth
Amendment due process claims against defendants Tapia,
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Seguin, Passage, and Hilton based on denying plaintiff
access to grievance channels; (52) a claim against defendants
Mohammed, Ferguson, and Schrader for violation of the
Health Insurance Portability and Accountability Act of 1996
(“HIPAA”), Pub.L. No. 104-191, 110 Stat.1936 (1996);
and (53) state law claims against defendants Annucci,
Martuscello, McCoy, Rodriguez, Venettozzi, Hilton, Passage,
and Sullivan based on violation of the HALT Act.
*24 Plaintiff seeks money damages and injunctive relief.
Compl. at 357-60. For a more complete statement of plaintiff's
claims, reference is made to the complaint.
C. Analysis
Plaintiff brings this action pursuant to Section 1983, which
establishes a cause of action for “ ‘the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws’ of the United States.” German v. Fed. Home Loan
Mortg. Corp., 885 F. Supp. 537, 573 (S.D.N.Y. 1995) (citing
Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)
(quoting 42 U.S.C. § 1983)) (footnote omitted); see also
Myers v. Wollowitz, No. 6:95-CV-0272 (TJM/RWS), 1995
WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (stating that Ҥ
1983 is the vehicle by which individuals may seek redress
for alleged violations of their constitutional rights.” (citation
omitted)). “Section 1983 itself creates no substantive rights,
[but] ... only a procedure for redress for the deprivation of
rights established elsewhere.” Sykes v. James, 13 F.3d 515,
519 (2d Cir. 1993) (citation omitted).
“It is well settled that, in order to establish a defendant's
individual liability in a suit brought under § 1983, a plaintiff
must show, inter alia, the defendant's personal involvement in
the alleged constitutional deprivation.” Grullon v. City of New
Haven, 720 F.3d 133, 138 (2d Cir. 2013). Thus, “a Section
1983 plaintiff must ‘allege a tangible connection between the
acts of the defendant and the injuries suffered.’ ” Austin v.
Pappas, No. 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y.
Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263
(2d Cir. 1986)) (other citation omitted).
If a defendant is a supervisory official, a mere “linkage”
to the unlawful conduct through “the prison chain of
command” (i.e., under the doctrine of respondeat superior)
is insufficient to show his or her personal involvement in
that unlawful conduct. See Polk Cnty. v. Dodson, 454 U.S.
312, 325 (1981); Richardson v. Goord, 347 F.3d 431, 435
(2d Cir. 2003); Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.
1996). Instead, “a plaintiff must plead and prove that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.’ ” Tangreti v.
Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal,
556 U.S. at 676 and holding that “there is no special rule for
supervisory liability”).
1. Retaliation Claims
Courts must approach claims of retaliation “ ‘with skepticism
and particular care’ because ‘virtually any adverse action
taken against a prisoner by a prison official–even those
otherwise not rising to the level of a constitutional violation–
can be characterized as a constitutionally proscribed
retaliatory act.’ ” Davis v. Goord, 320 F.3d 346, 352 (2d Cir.
2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.
2001), overruled on other grounds, Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002)). To state a plausible claim, a
plaintiff asserting a First Amendment retaliation claim must
advance “non-conclusory” allegations establishing “(1) that
the speech or conduct at issue was protected, (2) that the
defendant took adverse action against the plaintiff, and (3)
that there was a causal connection between the protected
speech [or conduct] and the adverse action.” Davis, 320 F.3d
at 352 (quoting Dawes, 239 F.3d at 492). “[A] complaint
which alleges retaliation in wholly conclusory terms may
safely be dismissed on the pleadings alone.” Flaherty v.
Coughlin, 713 F.2d 10, 13 (2d Cir. 1983).
*25 “To be an ‘adverse action,’ retaliatory conduct must be
the type that would deter ‘a similarly situated individual of
ordinary firmness from exercising his or her constitutional
rights.’ ” Hayes v. Dahlke, 976 F.3d 259, 274 (2d Cir. 2020)
(quoting Davis, 320 F.3d at 353).
At this stage of the proceeding, and mindful of the Second
Circuit's direction that a pro se plaintiff's pleadings must
be liberally construed, see e.g. Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court
finds that each of plaintiff's retaliation claims survive sua
sponte review and require a response. In so ruling, the Court
expresses no opinion as to whether these claims can withstand
a properly filed dispositive motion.
2. Access-to-Courts Claims
In Bounds v. Smith, the Supreme Court held that access
to the courts is a fundamental right that requires prison
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authorities to “assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate
law libraries or adequate assistance from persons trained in
the law.” 430 U.S. 817, 828 (1977).
The “right of access to the courts” requires States “to
give prisoners a reasonably adequate opportunity to present
claimed violations of fundamental constitutional rights.”
Bounds, 430 U.S. at 828, modified on other grounds, Lewis
v. Casey, 518 U.S. 343, 350 (1996); see also Bourdon v.
Loughren, 386 F.2d 88, 92 (2d Cir. 2004). “However, this right
is not ‘an abstract, freestanding right ....’ and cannot ground
a Section 1983 claim without a showing of ‘actual injury.’ ”
Collins v. Goord, 438 F. Supp. 2d 399, 415 (S.D.N.Y. 2006)
(quoting Lewis, 518 U.S. at 351).
To state a claim for denial of access to the courts, a plaintiff
must assert non-conclusory allegations demonstrating that
(1) the defendant acted deliberately, and (2) the plaintiff
suffered an actual injury. Lewis, 518 U.S. at 353; Konigsberg
v. Lefevre, 267 F. Supp. 2d 255, 261 (N.D.N.Y. 2003) (“Prison
officials may only be held liable for such injury if they
frustrated or impeded a prisoner's efforts to pursue a non-
frivolous legal claim.”).
“A hypothetical injury is not sufficient to state a claim for
violation of the right of access to the courts.” Amaker v.
Haponik, No. 98-CV-2663, 1999 WL 76798, at *3 (S.D.N.Y.
Feb. 17, 1999). Instead, a plaintiff must demonstrate “actual
injury” by establishing that the denial “hindered his efforts”
to pursue a non-frivolous legal claim. Lewis, 518 U.S.
at 349, 351-53 (noting that “an inmate cannot establish
relevant actual injury simply by establishing that his prison's
law library or legal assistance program is subpar in some
theoretical sense”).
The Supreme Court has stated that in order to allege a
denial of access to the courts claim, “the underlying cause of
action, whether anticipated or lost, is an element that must
be described in the complaint ....” Christopher v. Harbury,
536 U.S. 403, 415 (2002). The underlying claim “must be
described well enough to apply the ‘nonfrivolous’ test and
to show that the ‘arguable’ nature of the underlying claim
is more than hope.” Id. at 415-16. “[T]he complaint should
state the underlying claim in accordance with Federal Rule
of Civil Procedure 8(a), just as if it were being independently
pursued, and a like plain statement should describe any
remedy available under the access claim and presently unique
to it.” Id. at 417-18 (footnote omitted).
*26 “Finally, ... the injury requirement is not satisfied by
just any type of frustrated legal claim.” Lewis, 518 U.S. at
354. Rather, the injury must be to an inmate's ability “to attack
[his] sentence[ ], directly or collaterally, [or] ... to challenge
the conditions of [his] confinement.” Id. at 355. “Impairment
of any other litigating capacity is simply one of the incidental
(and perfectly constitutional) consequences of conviction and
incarceration.” Id.
In this case, plaintiff alleges that the PMT members deprived
him of access to the law library and legal services, which
“severely hindered” his ability to litigate civil matters. See
Compl. at 212-217. Plaintiff also alleges that he believes he
“lost” two civil cases brought in the New York Court of
Claims as a result of “being unable to prepare for trial in
2024[.]” Id. at 219.
As an initial matter, the complaint does not include any
details regarding the nature of plaintiff's existing or intended
lawsuits, let alone allegations from which the Court may
be able to infer that the “arguable” nature of these actions
was “more than hope.” Christopher, 536 U.S. at 415-16.
Moreover, the complaint does not explain in any detail how
plaintiff believes that a lack of access to law library services
impacted any of his proceedings, i.e., what legal issue or filing
necessitated law library services in each proceeding. Thus,
the Court has no basis to plausibly infer from the allegations
in the complaint and documents attached thereto that plaintiff
suffered an “actual injury” in any court proceeding as a result
of the lack of access to law library services.
Accordingly, plaintiff's access-to-courts claims are dismissed
without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and
28 U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted.
3. Mail Tampering Claims
“[A] prisoner's right to the free flow of incoming and outgoing
mail is protected by the First Amendment.” Davis v. Goord,
320 F.3d 346, 351 (2d Cir. 2003). A prisoner's mail may
only be restricted to further “ ‘one or more of the substantial
governmental interests of security, order, and rehabilitation ...
[and] must be no greater than is necessary or essential to the
protection of the particular governmental interest involved.’
” Id. (quoting Washington v. James, 782 F.2d 1134, 1139 (2d
Cir. 1986)).
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As courts have attempted to balance the competing interests
implicated when facilities place restrictions on prison mail,
the courts have “consistently afforded greater protection to
legal mail than to non-legal mail[.]” Davis, 320 F.3d at 351.
“While a prisoner has a right to be present when his legal mail
is opened, ... an isolated incident of mail tampering is usually
insufficient to establish a constitutional violation.” Davis, 320
F.3d at 351 (citations omitted). However, in Washington v.
James, the Second Circuit found that “as few as two incidents
of mail tampering could constitute an actionable violation (1)
if the incidents suggested an ongoing practice of censorship
unjustified by a substantial government interest, or (2) if the
tampering unjustifiably chilled the prisoner's right of access
to the courts or impaired the legal representation received.”
Davis, 320 F.3d at 351 (citing Washington, 782 F.2d at
1139); see also Turner v. Safley, 482 U.S. 78, 84-91 (1987)
(prison regulations impinging constitutional rights must be
“reasonably related to legitimate penological interests”).
*27 At this stage of the proceeding, and mindful of the
Second Circuit's direction that a pro se plaintiff's pleadings
must be liberally construed, the Court finds that plaintiff's
mail tampering claims survive sua sponte review and require
a response. In so ruling, the Court expresses no opinion
as to whether these claims can withstand a properly filed
dispositive motion.
4. Free Exercise Claims
The First Amendment to the United States Constitution
guarantees the right to free exercise of religion. See U.S.
Const. amend. I; Cutter v. Wilkinson, 544 U.S. 709, 719
(2005). As is true with regard to the First Amendment
generally, the free exercise clause applies to prison inmates,
subject to appropriate limiting factors. See Ford v. McGinnis,
352 F.3d 582, 588 (2d Cir. 2003) (holding that “[p]risoners
have long been understood to retain some measure of the
constitutional protection afforded by the First Amendment's
Free Exercise Clause”) (citing Pell v. Procunier, 417 U.S.
817, 822 (1974)).
“[A]n inmate does not need to establish a substantial burden
in order to prevail on a free exercise claim under § 1983.”
Kravitz v. Purcell, 87 F.4th 111, 125 (2d Cir. 2023). “In
the prison context, however, ‘the right to free exercise of
religion’ is balanced against ‘the interests of prison officials
charged with complex duties arising from administration of
the penal system.’ ” Kravitz, 87 F.4th at 127-28 (quoting
Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990)).
Thus, “an infringement of the free exercise of religion [may
be] permissible ... if it is ‘reasonably related to legitimate
penological interests.’ ” Id. (quoting Benjamin, 905 F.2d at
574).
“[T]o assess a free exercise claim, a court must determine
(1) whether the practice asserted is religious in the person's
scheme of beliefs, and whether the belief is sincerely held;
(2) whether the challenged practice of the prison officials
infringes upon the religious belief; and (3) whether the
challenged practice of the prison officials furthers legitimate
penological objectives.” Kravitz, 87 F.4th at 128 (alterations
adopted) (quoting Farid v. Smith, 850 F.2d 917, 926 (2d Cir.
1988)).
At this stage of the proceeding, and mindful of the Second
Circuit's direction that a pro se plaintiff's pleadings must
be liberally construed, the Court finds that plaintiff's free
exercise claims survive sua sponte review and require a
response. In so ruling, the Court expresses no opinion as
to whether these claims can withstand a properly filed
dispositive motion.
5. Unlawful Cell Search Claim
The Fourth Amendment guarantees that “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon
probable cause....” U.S. Const. amend. IV. A seizure of
property “occurs when there is some meaningful interference
with an individual's possessory interest in that property.”
United States v. Jacobsen, 466 U.S. 109, 113 (1984). The
Supreme Court has held that “the Fourth Amendment has
no applicability to a prison cell” or the unlawful destruction
of property when adequate post-deprivation remedies exist.
Hudson v. Palmer, 468 U.S. 517, 528 n.8, 536 (1984);
see also Vogelfang v. Capra, 889 F. Supp. 2d 489, 509
(S.D.N.Y. 2012) (dismissing Fourth Amendment claim based
on unlawful confiscation of property because adequate state
post-deprivation remedies were available).
*28 In this case, plaintiff alleges that on December 28, 2023,
defendants Johnson and Dehli ransacked his cell during a
search while he was away, and confiscated or discarded some
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of his legal materials, along with personal property. Compl.
at 197-198.
Importantly, plaintiff does not allege that he was unable to
litigate any pending or intended claim in a court proceeding
as a result of this wrongdoing. Nor does plaintiff allege that
adequate post-deprivation remedies were unavailable to him
insofar as any item of property was not returned to him. 8
Thus, plaintiff cannot succeed on a Fourth Amendment claim
based on the alleged confiscation of property from his cell.
See Hudson, 468 U.S. at 539 (“Since the exigencies of prison
life authorize officials indefinitely to dispossess inmates of
their possessions without specific reason, any losses that
occur while the property is in official custody are simply
not redressable by Fourth Amendment litigation.”); Soldal
v. Cook County, 506 U.S. 56, 65 (1992) (“[A]n inmate,
because of his status, enjoy[s] neither a right to privacy
in his cell nor protection against unreasonable seizures
of his personal effects”); Koehl v. Dalsheim, 85 F.3d 86,
88 (2d Cir. 1996) (“[T]he Court properly concluded that
the confiscation of Koehl's eye-glasses did not constitute
a Fourteenth Amendment violation for loss of property
because of the availability of state court post-deprivation
remedies.” (internal citations omitted)); Humphrey v. Sec'y
Pennsylvania Dep't of Corr., 712 Fed. App'x 122, 125 (3d Cir.
2017) (“We agree with the District Court that, to the extent
Humphrey claimed that the seizure of his legal materials was
a violation of the Fourth Amendment, he failed to state a claim
for relief because the Fourth Amendment has no applicability
to the contents of a prisoner's cell.... In addition, because he
has an adequate post-deprivation remedy, both through the
prison grievance process and in state tort law, any alleged due
process claims with respect to the confiscation of his legal
materials also fail.” (internal citations omitted)).
8 As the Second Circuit has made clear, “New
York in fact affords an adequate post-deprivation
remedy” for inmates seeking to recover monetarily
for lost or destroyed property “in the form of,
inter alia, a Court of Claims action.” Jackson v.
Burke, 256 F.3d 93, 96 (2d Cir. 2001); Davis v.
New York, 311 Fed. App'x 397, 400 (2d Cir. 2009)
(“The existence of this adequate post-deprivation
state remedy would thus preclude [plaintiff's] due
process claim under § 1983 [for lost personal
property].”).
Accordingly, plaintiff's unlawful cell search claim is
dismissed without prejudice pursuant to 28 U.S.C. 1915(e)(2)
(B)(ii) and 28 U.S.C. § 1915A(b)(1) for failure to state a claim
upon which relief may be granted.
6. Privacy Claim
The Fourth Amendment guarantees that “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable
cause....” U.S. Const. amend. IV. “The protection afforded
by the Fourth Amendment against unreasonable searches
and seizures ‘governs not only the seizure of tangible items,
but extends as well to the recording of oral statements.’ ”
Lonegan v. Hasty, 436 F. Supp. 2d 419, 433 (E.D.N.Y. 2006)
(quoting Katz v. United States, 389 U.S. 347, 353 (1967)).
As noted in Katz, the applicability of the Fourth Amendment
depends on two things: “first, that a person have exhibited an
actual (subjective) expectation of privacy and, second, that
the expectation be one that society is prepared to recognize
as ‘reasonable.’ ” Id. at 361 (Harlan, J., concurring). “If those
prerequisites are met, then the court must determine whether
the search or seizure at issue was reasonable.” Lonegan, 436
F. Supp. 2d at 433. “In the context of electronic surveillance,
a search and seizure is presumed to be unreasonable unless
authorized in advance by a warrant.” Id. (citing Katz, 389 U.S.
at 359).
*29 It is well-settled that the attorney-client privilege “is
founded upon the necessity, in the interest and administration
of justice, of the aid of persons having knowledge of the
law and skilled in its practice, which assistance can only be
safely and readily availed of when free from the consequences
or the apprehension of disclosure.” Hunt v. Blackburn, 128
U.S. 464, 470 (1888). “[W]hile a prison is not, for most
purposes, a place where a person expects privacy, privileged
communications between attorneys and clients, the recording
of which is prohibited both by statute and regulation, ...
are protected by the Fourth Amendment from government
eavesdropping, especially when those communications take
place in the area of the prison designated for attorney-client
meetings.” Lonegan, 436 F. Supp. 2d at 435 (E.D.N.Y. 2006)
(collecting cases).
In light of the foregoing, and mindful of the Second Circuit's
direction that a pro se plaintiff's pleadings must be liberally
construed, the Court finds that plaintiff's Fourth Amendment
privacy claims survive sua sponte review and require a
response. In so ruling, the Court expresses no opinion as
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to whether these claims can withstand a properly filed
dispositive motion.
7. Excessive Force and Failure-to-Intervene Claims
The Eighth Amendment protects prisoners from “cruel and
unusual punishment” at the hands of prison officials. Wilson
v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble, 429
U.S. 97, 104 (1976). This includes punishments that “involve
the unnecessary and wanton infliction of pain.” Gregg v.
Georgia, 428 U.S. 153, 173 (1976). The Second Circuit, in
addressing the needs protected by the Eighth Amendment,
has stated that sentenced prisoners are entitled to “adequate
food, clothing, shelter, sanitation, medical care and personal
safety.” Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir. 1978),
rev'd on other grounds sub nom. Bell v. Wolfish, 441 U.S. 520
(1979); Lareau v. Manson, 651 F.2d 96, 106 (2d Cir. 1981).
The Eighth Amendment's prohibition against cruel and
unusual punishment encompasses the use of excessive force
against an inmate, who must prove two components: (1)
subjectively, that the defendant acted wantonly and in bad
faith, and (2) objectively, that the defendant's actions violated
“contemporary standards of decency.” Blyden v. Mancusi, 186
F.3d 252, 262-63 (2d Cir. 1999) (internal quotations omitted)
(citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)).
“The Eighth Amendment [also] requires prison officials to
take reasonable measures to guarantee the safety of inmates in
their custody.” Hayes v. New York City Dept. of Corrs., 84 F.3d
614, 620 (2d Cir. 1996) (citing Farmer v. Brennan, 511 U.S.
825, 832 (1994)). Law enforcement officials, including prison
officials, can be held liable under Section 1983 for failing to
intervene in a situation where another official is violating an
inmate's constitutional rights, including the use of excessive
force, in their presence. Curley v. Vill. of Suffern, 268 F.3d 65,
72 (2d Cir. 2001); see also Anderson v. Branen, 17 F.3d 552,
557 (2d Cir. 1994) (prison official's Eighth Amendment duty
to take reasonable measures to guarantee the safety of inmates
in their custody includes a duty to protect inmates from harm
threatened by other officers).
At this stage of the proceeding, and mindful of the Second
Circuit's direction that a pro se plaintiff's pleadings must be
liberally construed, the Court finds that each of plaintiff's
excessive force and failure-to-intervene claims survive sua
sponte review and require a response. In so ruling, the Court
expresses no opinion as to whether these claims can withstand
a properly filed dispositive motion.
8. Eighth Amendment Medical Indifference Claims
Claims that prison officials have intentionally disregarded an
inmate's medical needs fall under the umbrella of protection
from the imposition of cruel and unusual punishment afforded
by the Eighth Amendment. Estelle, 429 U.S. at 102, 104.
The Eighth Amendment prohibits punishment that involves
the “unnecessary and wanton infliction of pain” and is
incompatible with “the evolving standards of decency that
mark the progress of a maturing society.” Id.; see also Whitley
v. Albers, 475 U.S. 312, 319 (1986) (citing, inter alia, Estelle).
While the Eighth Amendment does not mandate comfortable
prisons, neither does it tolerate inhumane treatment of those
in confinement. Farmer, 511 U.S. at 832 (citing Rhodes v.
Chapman, 452 U.S. 337, 349 (1981)).
*30 “In order to establish an Eighth Amendment claim
arising out of inadequate medical care, a prisoner must prove
‘deliberate indifference to [his] serious medical needs.’ ”
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)
(quoting Estelle, 429 U.S. at 104).
“First, the alleged deprivation must be, in objective terms,
sufficiently serious.” Chance, 143 F.3d at 702 (internal
quotation marks and citations omitted). Addressing the
objective element, to prevail a plaintiff must demonstrate
a violation sufficiently serious by objective terms, “in the
sense that a condition of urgency, one that may produce
death, degeneration, or extreme pain exists.” Hathaway v.
Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). To determine
whether inadequate care is “sufficiently serious,” a court must
“examine how the offending conduct is inadequate and what
harm, if any, the inadequacy has caused or will likely cause
the prisoner.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d
Cir. 2006). “Where a plaintiff alleges that inadequate care
was provided—instead of alleging a failure to provide any
treatment—the inquiry focuses on ‘the particular risk of harm
faced by a prisoner due to the challenged deprivation of
care, rather than the severity of the prisoner's underlying
medical condition, considered in the abstract.’ ” Revels v.
Corr. Med. Care, Inc., No. 9:17-CV-0088 (MAD/TWD),
2018 WL 1578157, at *4 (N.D.N.Y. Mar. 28, 2018) (quoting
Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003)); see
also Ray v. Zamilus, No. 13-CV-2201, 2017 WL 4329722,
*8 (S.D.N.Y. Sept. 27, 2017) (finding that where a “plaintiff
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suffered from a delay in treatment, rather than a complete lack
of treatment, the objective element must be satisfied by harm
that resulted from the delay”).
“Second, the defendant must act with a sufficiently culpable
state of mind,” Chance, 143 F.3d at 702 (internal quotation
marks and citations omitted); that is, the plaintiff must
demonstrate that the defendant “kn[ew] of and disregard[ed]
an excessive risk to inmate health or safety.” Farmer, 511 U.S.
at 837; see also Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.
1999) (With respect to the subjective element, a plaintiff must
also demonstrate that defendant had “the necessary level of
culpability, shown by actions characterized by ‘wantonness.’
”).
Non-medical personnel may be held liable for deliberate
indifference to medical needs where a plaintiff demonstrates
that the prison personnel intentionally denied or delayed
access to medical care or intentionally interfered with medical
treatment once it was prescribed. See Banks v. No. 8932 Corr.
Officer, No. 11-CV-8359, 2013 WL 673883, at *4 (S.D.N.Y.
Feb. 25, 2013) (“A prison guard's deliberate indifference to
a serious medical need of a prisoner means intentionally
denying or delaying access to medical care or intentionally
interfering with medical treatment once it was prescribed.”);
see also Estelle, 429 U.S. at 104-05 (1976) (noting that
deliberate indifference may be manifested when prison guards
intentionally deny or delay access to medical care).
At this stage of the proceeding, and mindful of the Second
Circuit's direction that a pro se plaintiff's pleadings must be
liberally construed, the Court finds that all but the following
medical indifference claims survive sua sponte review and
require a response: (1) the First Medical Indifference Claim
insofar as it is asserted against defendant Rosario; (2) the
Second Medical Indifference Claim; (3) the Fifth Medical
Indifference Claim insofar as it is asserted against Nurse Jane
Doe #1 and Nurse Jane Doe #2; and (4) the Seventh Medical
Indifference Claim. In so ruling, the Court expresses no
opinion as to whether these claims can withstand a properly
filed dispositive motion.
*31 Insofar as the complaint asserts a medical indifference
claim against defendant Rosario based on a single missed
medical trip on August 7, 2023, by plaintiff's own allegations,
this official arrived at plaintiff's cell to transport him for the
trip, and plaintiff “requested to speak with a supervisor” to
ensure that his trip would proceed. Compl. at 57-58. While
plaintiff also alleges that nobody ever returned to speak with
him, the Court has no basis to plausibly infer that defendant
Rosario either (1) was aware of the medical significance of
the trip, or (2) interfered with plaintiff's ability to attend the
trip. Thus, plaintiff has failed to adequately plead a claim for
medical indifference against this official.
Insofar as the complaint asserts a medical indifference claim
against defendants Brown, Paladino, Czerwinski, Tapia, and
Hilton based on allegations that these officials failed to update
plaintiff's medical proxy, plaintiff does not allege that the
failure to update his medical proxy resulted in the denial
of any medical treatment, or otherwise exposed him to an
objectively serious risk of harm. Thus, while this conduct
may be evidence of deliberate indifference that is generally
relevant to other underlying claims, it does not give rise to an
independent Eighth Amendment claim.
Insofar as the complaint asserts a medical indifference claim
against defendant Nurse Jane Doe #1 based on allegations
that this official failed to treat plaintiff at his cell after he had
“another seizure” on June 26, 2024, and against defendant
Nurse Jane Doe #2 based on allegations that this official failed
to examine plaintiff after a separate seizure around the same
time, by plaintiff's own allegations, he frequently suffered
from seizures in 2024. Moreover, the complaint does not
allege (1) the type of post-seizure treatment plaintiff normally
received or expected, (2) how any sort of treatment may have
improved plaintiff's condition, (3) when plaintiff received
treatment following either of these seizures, (4) the nature of
the treatment that he received, (5) how plaintiff's condition
worsened, if at all, based on Nurse Jane Doe #1 and Nurse
Jane Doe #2 not providing any treatment, or (6) what these
officials communicated to plaintiff during their visits with
him, if anything. Thus, the Court has no basis to plausibly
infer either that (1) plaintiff was suffering from an objectively
serious medical condition when either Nurse Jane Doe #1 or
Nurse Jane Doe #2 visited him at his cell, or (2) the failure by
either of these officials to treat plaintiff to his satisfaction was
based on deliberate indifference to his well-being.
Finally, insofar as the complaint asserts a medical
indifference claim against defendants Hark, Hamilton,
Penree, CERT Female, and Edick based on these officials
failing to document plaintiff's injuries from a slip-and-fall
incident in October 2024, and arrange for brain imaging,
the complaint acknowledges that defendant Hamilton
documented plaintiff's head injuries at defendant Penree's
direction. See Compl. at 95-96. Moreover, the complaint
is devoid of allegations which plausibly suggest that the
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failure to document plaintiff's injuries to his satisfaction
prevented him from obtaining additional necessary medical
treatment for those injuries, or that plaintiff's condition
worsened in some respect as a result of not having other
injuries documented. Furthermore, the law is well-settled that
a prisoner is not entitled to the treatment of his choosing, and
the failure to document an incident after-the-fact does not,
without more, give rise to an Eighth Amendment claim. See,
e.g., Cox v. Lescano, No. 20-CV-7381, 2022 WL 2048106,
at *8 (S.D.N.Y. June 7, 2022) (“Plaintiff alleges Defendant
Lescano examined the depigmentation on his scalp but
‘intentionally refused to note down that she viewed Cox's
scalp with a light and magnified class’ and ‘did not even
make mention of exam performed on October 8, 2018.’ ...
Plaintiff does not allege how the alleged false record occurred
in connection with any deliberate indifference of Lescano to
his medical needs.”); Evans v. Murphy, No. 12-CV-365, 2013
WL 2250709, at *3 (W.D.N.Y. May 22, 2013) (dismissing
claim that defendant “failed to document [plaintiff's] injuries
to cover-up the incident[,]” noting that “[s]uch a claim does
not state a constitutional claim”); Bloomfield v. Wurzberger,
No. 9:08-CV-0619 (GLS/RFT), 2009 WL 3335892, at *5
(N.D.N.Y. Oct. 15, 2009) (filing of a false entry in an
inmate's medical records, without more, does not constitute
a constitutional violation); Chance v. Armstrong, 143 F.3d
698, 703 (2d Cir. 1998) (“It is well-established that mere
disagreement over the proper treatment does not create a
constitutional claim.”); Wright v. Genovese, 694 F. Supp. 2d
137, 155 (N.D.N.Y. 2010) (“An inmate does not have the right
to treatment of his choice. The fact that the plaintiff might
have preferred an alternative treatment ... does not rise to the
level of a constitutional violation.” (citation omitted)).
*32 In light of the foregoing, the Second Medical
Indifference Claim, Seventh Medical Indifference Claim, and
plaintiff's Eighth Amendment medical indifference claims
against defendants Rosario, Nurse Jane Doe #1, and Nurse
Jane Doe #2 are dismissed without prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) for
failure to state a claim upon which relief may be granted.
9. Failure-to-Protect Claims
Prison officials may separately be held liable under Section
1983 for failing to protect an inmate from conditions posing
a substantial risk of serious harm. See Farmer, 511 U.S. at
836. In order to establish a “failure to protect,” the plaintiff
must show that he was incarcerated under conditions posing
a substantial risk of serious harm, and prison officials acted
with deliberate indifference to that risk and the inmate's
safety. Farmer, 511 U.S. at 836. Deliberate indifference exists
when “the official knows of and disregards an excessive risk
to inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.” Id. at 837.
“One way to make out such a claim is to allege that
‘a substantial risk of inmate attacks was longstanding,
pervasive, well-documented, or expressly noted by prison
officials in the past, and the circumstances suggest that the
defendant official being sued had been exposed to information
concerning the risk and thus must have known about it.’ ”
Coronado v. Goord, No. 99-CV-1674, 2000 WL 1372834,
at *4 (S.D.N.Y. Sept. 25, 2000) (quoting Farmer, 511 U.S.
at 842-43); see also Hayes, 84 F.3d at 620-21 (prisoner's
repeated expressions of fear following an inmate attack and
requests for transfer as a safety measure raised a question
of fact). “Courts have [also] found that a prisoner validly
states an Eighth Amendment claim based on a failure to
protect when he alleges that he informed corrections officers
about a specific fear of assault and is then assaulted.”
Davis v. Torres, No. 10-CV-2236, 2012 WL 3070092, at *5
(S.D.N.Y. May 2, 2012), report and recommendation adopted
by 2012 WL 3070083 (S.D.N.Y. July 27, 2012); see also
Beckles v. Bennett, No. 05-CV-2000, 2008 WL 821827, at
*17 (S.D.N.Y. Mar. 26, 2008) (denying summary judgment
where plaintiff presented evidence that he informed sergeant
of correction officers’ threatening behavior and was later
assaulted by those officers).
“On the other hand, an inmate's communications about
‘generalized safety concerns’ or ‘vague concerns of future
assault by unknown individuals’ are insufficient to provide
knowledge that the inmate is subject to a substantial risk of
serious harm.” Stephens v. Venettozzi, No. 13-CV-5779, 2016
WL 929268, at *19 (S.D.N.Y. Feb. 24, 2016) (quoting Ross v.
City of New York, No. 12-CV-8545, 2014 WL 3844783, at *8
(S.D.N.Y. 2014), rev'd on other grounds, No. 14-3327 (2d Cir.
July 20, 2015) (summary order)), report and recommendation
adopted sub nom. Stephens v. Venettozzi, 2016 WL 1047388
(S.D.N.Y. Mar. 10, 2016).
At this stage of the proceeding, and mindful of the Second
Circuit's direction that a pro se plaintiff's pleadings must be
liberally construed, the Court finds that plaintiff's Second
Failure-to-Protect Claim and Third Failure-to-Protect Claim
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against defendant Stevenson survive sua sponte review and
require a response. In so ruling, the Court expresses no
opinion as to whether these claims can withstand a properly
filed dispositive motion.
*33 With respect to the First Failure-to-Protect Claim,
the complaint alleges that defendants Christopher, Hilton,
Bishop, Storey, Fischer, Harris, Laliberte, Chaudry,
Czerwinski, Schrader, Penree, Ferrone, Prisma, Hark,
Johnson, Hamilton, and Russell failed to provide plaintiff
with a shower curtain despite his requests prior to a slip
and fall incident on October 5, 2024. Compl. at 92-94.
Importantly, the complaint does not include any details which
plausibly suggest that plaintiff specifically advised any of
these officials about a risk of harm as a result of not having
access to a shower curtain in advance of October 5, 2024.
Furthermore, by plaintiff's own allegations, he was aware of
the wet floor condition before exiting the shower, and the
complaint does not allege that plaintiff was unable to exercise
self-precautions on this particular day, such as covering the
water with a sheet or towel, sidestepping it, or requesting
assistance upon seeing it. In other words, the Court has no
basis to plausibly infer either that (1) plaintiff was exposed
to an objectively serious risk of harm on October 5, 2024, or
(2) defendants Christopher, Hilton, Bishop, Storey, Fischer,
Harris, Laliberte, Chaudry, Czerwinski, Schrader, Penree,
Ferrone, Prisma, Hark, Johnson, Hamilton, or Russell knew
or should have know that not providing plaintiff was a shower
curtain exposed him to an objectively serious risk of harm
on this date. See McCray v. Lee, No. 16-CV-1730, 2018 WL
1620976, at *7-9 (S.D.N.Y. Mar. 29, 2018) (concluding that
a recreation area not entirely covered with ice did not present
an objectively serious environment, and allegations that an
official directed plaintiff into the recreation area where he
slipped and fell on ice suggested, at most, negligence), aff'd
in pertinent part, 963 F.3d 110 (2d Cir. 2020) (affirming
“dismissal of so much of the [SAC] as seeks relief on the
basis that the combination of the slippery conditions in the
recreation yards and Kutz's order that McCray go into the
yard on February 20, 2014 violated McCray's rights under
the Eighth Amendment”); Korotkova v. United States, 990 F.
Supp. 2d 324, 330 (E.D.N.Y. 2014) (“[I]n prisons—where the
conditions of confinement are not voluntary or recreational ...
—courts have found that ‘slip-and-fall plaintiffs’ do not
state a cognizable claim under the Eighth Amendment.”);
Fredricks v. City of New York, No. 12-CV-3734, 2014 WL
3875181, at *4 (S.D.N.Y. July 23, 2014) (“A prisoner's bare
complaint about a slippery floor, without more, does not
state an arguable claim of deliberate indifference.”); Martin
v. City of New York, No. 11-CV-600, 2012 WL 1392648,
at *9 (S.D.N.Y. Apr. 20, 2012) (dismissing complaint that
alleged that the plaintiff slipped and fell on a wet floor while
wearing ill-fitting shoes); Garland v. City of New York, No.
22-CV-10947, 2023 WL 2898625, at *3 (S.D.N.Y. Apr. 10,
2023) (“Plaintiff does not allege any facts as to the October 3,
2014, fall, or as to the May 5, 2015, shower scalding, showing
that any correction official was deliberately indifferent to a
risk of serious harm to Plaintiff.”); Heredia v. Doe, 473 F.
Supp. 2d 462, 463 (S.D.N.Y. 2007) (dismissing a § 1983 claim
based on an allegation that the plaintiff “slipped and fell while
walking to his cell” because “the pleadings fail to state facts
which constitute anything more than a claim for negligence,
for which there is no cause of action under ... § 1983”).
With respect to the Third Failure-to-Protect Claim, the
complaint alleges that defendant Stevenson verbally harassed
plaintiff on October 1, 2023, suggesting in the presence of
other inmates that plaintiff was incarcerated for being a sex
offender, and defendants Laliberte, Tapia, Hilton, and Seguin
subsequently failed to take corrective steps with respect
to plaintiff's sexual harassment complaint. See Compl. at
193-194.
Insofar as plaintiff asserts claims against defendants
Laliberte, Tapia, Hilton, and Seguin, the Court has no basis
to plausibly infer from the allegations in the complaint
that plaintiff faced any ongoing risk of serious harm as
a result of defendant Stevenson's actions on October 1,
2023, let alone any ongoing risk that was made known
to Laliberte, Tapia, Hilton, and Seguin through plaintiff's
complaints. Rather, the allegations in the complaint suggest
that plaintiff complained to these officials only about a past
incident of harm. Thus, the alleged failure to address the
wrongdoing after-the-fact does not amount to an Eighth
Amendment violation. See, e.g., Boyd v. Doe #1, No. 9:18-
CV-1333 (TJM/ATB), 2021 WL 7542409, at *16 (N.D.N.Y.
Nov. 30, 2021) (citations omitted) (“[T]he crux of [the]
plaintiff's claims against [the defendants] is that they are
liable for failing to sufficiently remedy the wrongs of
their subordinates, despite having received notice from [the]
plaintiff of the alleged misconduct. These contentions closely
track the pre-Tangreti standard for establishing personal
involvement of a supervisory official; contemplating personal
involvement where an official, after being informed of the
violation through report or appeal, failed to remedy the
wrong. However, in the wake of Tangreti these allegations are
insufficient to establish personal involvement of a supervisory
official, and plaintiff has otherwise failed to allege facts
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plausibly suggesting [the defendants’] personal involvement
in the alleged conduct giving rise to [the] plaintiff's First and
Eighth Amendment claims.”), report and recommendation
adopted by 2022 WL 823648 (N.D.N.Y. Mar. 18, 2022);
Germano v. Cook, No. 21-CV-0550, 2021 WL 2810170,
at *5 (D. Conn. July 6, 2021) (“But absent allegations of
an ongoing violation of a prisoner's constitutional rights,
such allegations that supervisors did not do enough after a
constitutional violation has already occurred is not enough
to show personal involvement of the supervisors in the
violation of a prisoner's constitutional rights.”); Sawyer v.
New York State Dept. of Corr. Servs., No. 11-CV-0152, 2015
WL 6644112, at *6-7 (W.D.N.Y. June 30, 2015) (dismissing
failure-to-protect claim against official who received inmate's
grievance expressing fear for his safety based on other
inmates calling him a “rat” and a “snitch,” even though
plaintiff alleged he was assaulted following an investigation
of the grievance by another official, noting that the amended
complaint and documents attached thereto failed to “reveal
that Plaintiff ever asserted a physical attack was imminent
such that [the official who received plaintiff's grievance]
cannot be found to have known that Plaintiff was being
threatened by certain inmates with actual or imminent
harm” (internal quotation mark and citation omitted)), report
and recommendation adopted in pertinent part by 2015 WL
6641471 (W.D.N.Y. Oct. 28, 2015); Lombardo v. Stone, No.
99-CV-4603, 2001 WL 940559, at *7 (S.D.N.Y. Aug. 20,
2001) (“Plaintiff's claims against Lee is that she failed to
investigate her subordinates and preserve evidence against
them. The failure to investigate is not sufficient to sustain an
Eighth Amendment claim.” (collecting cases)).
*34 Finally, with respect to the Fourth Failure-to-Protect
Claim, which is based on several named defendants
participating in a labor strike that allegedly created safety
risks within the facility, the complaint is devoid of allegations
which plausibly suggest that any of the named defendants
participated in the strike out of deliberate indifference to
plaintiff's well-being. Furthermore, the Court rejects the
premise of plaintiff's claim of wrongdoing insofar as it
imposes a duty on corrections officials to work, regardless of
their personal circumstances.
In light of the foregoing, plaintiff's First Failure-to-Protect
Claim, Third Failure-to-Protect Claim against all defendants
other than Stevenson, and Fourth Failure-to-Protect Claim are
dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)
(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) for failure to state a
claim upon which relief may be granted.
10. Conditions-of-Confinement Claims
To demonstrate that the conditions of confinement constitute
cruel and unusual punishment in violation of the Eighth
Amendment, a plaintiff must satisfy both an objective and
subjective element. See Jolly v. Coughlin, 76 F.3d 468, 480
(2d Cir. 1996). A plaintiff must demonstrate that (1) the
conditions of confinement resulted in “unquestioned and
serious deprivations of basic human needs,” Anderson v.
Coughlin, 757 F.2d 33, 35 (2d Cir. 1985); see also Jolly, 76
F.3d at 480, and (2) the defendants acted with “deliberate
indifference.” Wilson, 501 U.S. at 303-04.
Generally speaking, housing an incarcerated individual in
restrictive confinement, without more, and notwithstanding
the restrictions that such confinement imposes on ordinary
inmate life, does not constitute cruel and unusual punishment.
See Bowens v. Smith, No. 9:11-CV-0784, 2013 WL 103575, at
*10 (N.D.N.Y. Jan. 8, 2013) (“Confinement in SHU, in itself,
notwithstanding its additional restrictions on inmates, has
not been held to constitute cruel and unusual punishment.”),
report and recommendation adopted by 2013 WL 103596
(N.D.N.Y. Jan. 8, 2013); Hamilton v. Fisher, No. 9:10-
CV-1066 (MAD/RFT), 2012 WL 987374, at *8 (N.D.N.Y.
Feb. 29, 2012) (“ ‘[N]ormal’ conditions of SHU confinement
do not constitute an Eighth Amendment violation.” (citations
omitted)), report and recommendation adopted by 2012 WL
987122 (N.D.N.Y. Mar. 22, 2012); Jackson v. Johnson, 15 F.
Supp. 2d 341, 363 (S.D.N.Y. 1998) (“The mere placement in
keeplock for 99 days is not sufficiently egregious to constitute
cruel and unusual punishment under the Eighth Amendment”)
(collecting cases); Dixon v. Goord, 224 F.Supp.2d 739,
748-49 (S.D.N.Y. 2002) (holding that “allegations of having
been cut off from the prison population, a computer program,
religious services, legal research, medical showers and
personal property, as well as limits on food access, and other
normal incidents of SHU confinement,” which lasted ten
months, were “not violations of the Eighth Amendment”);
Marino v. Watts, No. 12-CV-801, 2015 WL 5603454, at
*3 (N.D.N.Y. May 29, 2015), report and recommendation
adopted in part, rejected in part on other grounds, 2015
WL 5603472 (N.D.N.Y. Sept. 23, 2015) (inmate who was
placed in SHU for two and one half months, during
which he did not have “window ventilation, sunshine, or
fresh air” in addition to other harsh conditions, failed to
establish that the conditions were sufficiently serious under
the objective prong of the Eighth Amendment/Due Process
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analysis); Abdur-Raheem v. Caffery, No. 13-CV-6315, 2015
WL 667528, at *4 (S.D.N.Y. Feb. 17, 2015) (dismissing
Eighth Amendment claim based on placement in SHU for
six months with resulting loss of packages, commissary, and
telephone privileges, noting that such deprivations “are not
sufficient to give rise to an Eighth Amendment violation”).
*35 “However, courts are also cognizant that ‘the
deleterious effects of isolated housing on inmates—especially
to those assigned to long-term solitary confinement—are
well-known and amply documented,’ including the fact
that prolonged solitary confinement ‘can and does lead to
significant psychological harm.’ ” Smith v. Annucci, No.
6:18-CV-06261, 2019 WL 539935, at *6 (W.D.N.Y. Feb. 11,
2019) (quoting Peoples v. Annucci, 180 F. Supp. 3d 294, 299
(S.D.N.Y. 2016)). “Accordingly, courts have found Eighth
Amendment violations where inmates are held in solitary
confinement for extended periods of time, such that the effects
are ‘grossly disproportionate’ to the reasons for the isolation.”
Smith, 2019 WL 539935, at *6 (citing, inter alia, Peoples
v. Fischer, 898 F. Supp. 2d at 621); see also Williams v.
Korines, No. 16-CV-1157 (FJS/TWD), 2017 WL 11458011,
at *5 (N.D.N.Y. Jan. 5, 2017) (“[SHU] confinement is
not ‘abnormal’ unless it is ‘totally without penological
justification,’ ‘grossly disproportionate,’ or ‘involve[s] the
unnecessary and wanton infliction of pain.’ ” (quoting Smith
v. Coughlin, 748 F.2d 783, 787 (2d Cir. 1984))).
At this stage of the proceeding, and mindful of the
Second Circuit's direction that a pro se plaintiff's pleadings
must be liberally construed, the Court finds that plaintiff's
First Conditions-of-Confinement Claim, Second Conditions-
of-Confinement Claim, Fourth Conditions-of-Confinement
Claim, Fifth Conditions-of-Confinement Claim, and Sixth
Conditions-of-Confinement Claim survive sua sponte review
and require a response. In so ruling, the Court expresses no
opinion as to whether these claims can withstand a properly
filed dispositive motion.
With respect to the Third Conditions-of-Confinement Claim,
the complaint alleges that defendants J. Christopher and
Fischer denied plaintiff access to out-of-cell programming
at various times throughout his incarceration. While the
Court has allowed plaintiff to proceed with an Eighth
Amendment claim based on the overall nature of his
restrictive confinement in the Step-Down Program, plaintiff
does not have an independent constitutional right to
participate in out-of-cell programming that would trigger
a separate Eighth Amendment claim. See Lutz v. Cuomo,
No. 9:19-CV-0262 (BKS/CFH), 2019 WL 13369576, at *9
(N.D.N.Y. Apr. 12, 2019) (“[I]nmates have no constitutional
right to participation in prison programs.” (citing Murray v.
Hulihan, No. 9:08-CV-912 (NAM/ATB), 2010 WL 1235615,
at *7 (N.D.N.Y. Mar. 17, 2010)), adopted by 2010 WL
1260140 (N.D.N.Y. Mar. 31, 2010), aff'd, 436 F. App'x 22
(2d Cir. 2011)); Walker v. Bellnier, No. 9:17-CV-1008 (GTS/
CFH), 2017 WL 5135702, at *9 (N.D.N.Y. Nov. 3, 2017)
(“[I]nmates do not have a constitutional right to participate
in prison programs.” (collecting cases)); Harrison v. Fischer,
No. 08-CV-1327 (NAM/DRH), 2010 WL 2653629, at *8
(N.D.N.Y. June 7, 2010) (reasoning that discharge from
prison programming is also not a constitutional violation).
With respect to the Seventh Conditions-of-Confinement
Claim, which is based on allegations that defendant
Martuscello suspended certain out-of-cell privileges during
the labor strike, the Court has no basis to plausibly infer from
the allegations in the complaint that this occurred based on
defendant Martuscello's deliberate indifference to plaintiff's
well-being, as opposed to for legitimate penological reasons,
such as prisoner and employee safety. Turner v. Safley, 482
U.S. 78, 84-91 (1987) (holding that “when a prison regulation
impinges on inmates’ constitutional rights, the regulation
is valid if it is reasonably related to legitimate penological
interests”).
In light of the foregoing, plaintiff's Third Conditions-of-
Confinement Claim and Seventh Conditions-of-Confinement
Claim are dismissed without prejudice pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) for failure
to state a claim upon which relief may be granted.
11. Disciplinary Due Process Claims
*36 To successfully state a claim under Section 1983 for
denial of due process arising out of a disciplinary hearing,
a plaintiff must show that he both (1) possessed an actual
liberty interest, and (2) was deprived of that interest without
being afforded sufficient process. See Ortiz v. McBride, 380
F.3d 649, 654 (2d Cir. 2004); Tellier v. Fields, 280 F.3d 69,
79-80 (2d Cir. 2000); Hynes v. Squillace, 143 F.3d 653, 658
(2d Cir. 1998); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d
Cir. 1996).
In Sandin v. Conner, 515 U.S. 472 (1995), the United States
Supreme Court determined that to establish a liberty interest,
a plaintiff must sufficiently demonstrate that (1) the State
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actually created a protected liberty interest in being free from
segregation; and that (2) the segregation would impose an
“atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.” Sandin, 515 U.S.
at 483-84; Tellier, 280 F.3d at 80; Hynes, 143 F.3d at 658.
To determine whether an inmate has suffered an “atypical
and significant hardship,” the conditions imposed upon the
inmate must be compared with those imposed upon the rest
of the general population of the facility as well as those
in administrative and protective confinement. See Welch v.
Bartlett, 196 F.3d 389, 393 (2d Cir. 1999); see also Vega v.
Lantz, 596 F.3d 77, 83 (2d Cir. 2010) (“To be actionable,
the liberty interest must subject the prisoner to ‘atypical and
significant hardship ... in relation to the ordinary incidents
of prison life.’ ”) (quoting Sandin, 515 U.S. at 484). When
assessing the severity of the hardship imposed, a court should
take into account both the duration and the conditions of the
confinement, where appropriate. See Arce v. Walker, 139 F.3d
329, 336 (2d Cir. 1998). While under certain circumstances
confinement of less than 101 days could be shown to meet
the atypicality standard under Sandin (see Colon, 215 F.3d
at 232 n.5), the Second Circuit generally takes the position
that disciplinary confinement, without unusual conditions, for
a period of up to 101 days will generally not constitute an
atypical hardship, while confinement for a period of more
than 305 days has been held to be atypical even if under
“normal conditions.” Ortiz, 380 F.3d at 654; Colon, 215
F.3d at 231. As a general matter, “[a] period of confinement
between 101 and 305 days is considered to be an ‘intermediate
duration’ and could implicate a liberty interest should a
detailed record of the conditions of confinement indicate that
it was an atypical and significant hardship.” Bunting v. Nagy,
452 F. Supp. 2d 447, 456 (S.D.N.Y. 2006) (citing Sealey, 197
F.3d at 589); see also Palmer, 364 F.3d at 64-65 (“Where the
plaintiff was confined for an intermediate duration -- between
101 and 305 days -- ‘development of a detailed record’ of
the conditions of confinement relative to ordinary prison
conditions is required.”) (citing Colon, 215 F.3d at 232).
The due process protections afforded inmates facing
disciplinary hearings that affect a liberty or property interest
include advance written notice of the charges, a fair and
impartial hearing officer, a hearing that affords the inmate
the opportunity to call witnesses and present documentary
evidence, and a written statement of the evidence upon which
the hearing officer relied in making his determination. Sira v.
Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citing, inter alia, Wolff
v. McDonnell, 418 U.S. 539, 563-67 (1974)). The hearing
officer's findings must be supported by “some” “reliable
evidence.” Id. (citing, inter alia, Superintendent v. Hill, 472
U.S. 445, 455 (1985)).
*37 At this stage of the proceeding, and mindful of the
Second Circuit's direction that a pro se plaintiff's pleadings
must be liberally construed, the Court finds that plaintiff's
First Disciplinary Due Process Claim, Third Disciplinary Due
Process Claim against defendants Laliberte and Rodriguez,
and Fourth Disciplinary Due Process Claim survive sua
sponte review and require a response. In so ruling, the Court
expresses no opinion as to whether these claims can withstand
a properly filed dispositive motion.
With respect to the Second Disciplinary Due Process Claim,
the complaint alleges that defendant Mayo issued plaintiff
a misbehavior report in connection with his role in an
altercation with inmate Bradley in April 2023, and defendant
Storey thereafter found plaintiff guilty of the charges in the
misbehavior report and sentenced him to six months of SHU
confinement, which defendant Rodriguez affirmed. Compl.
at 183-185. The complaint does not allege that plaintiff was
innocent of the charges in the misbehavior report. Nor does
the complaint include any details explaining how, if at all,
plaintiff may have been denied the process to which he was
entitled in connection with his disciplinary hearing. In other
words, plaintiff has failed to adequately allege that he suffered
a deprivation of his due process rights in connection with this
disciplinary hearing.
Accordingly, plaintiff's Second Disciplinary Due Process
Claim is dismissed without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) for failure to
state a claim upon which relief may be granted.
With respect to the Third Disciplinary Due Process Claim,
the complaint alleges that plaintiff was issued a misbehavior
report in connection with a cup throwing incident on
December 8, 2024, and defendant Lewis was assigned as
plaintiff's assistant for his disciplinary hearing. Compl. at
127-128. The complaint further alleges that plaintiff asked
defendant Lewis to gather certain evidence for his hearing
on December 31, 2024, but later that day, plaintiff received
defendant Laliberte's disciplinary disposition, which “falsely”
indicated that plaintiff was “removed from the hearing for
bad behavior” and found plaintiff guilty of the charges in the
misbehavior report. Compl. at 128-129. While the Court will
allow plaintiff to proceed with his due process claims against
defendants Laliberte and Rodriguez, the Court has no basis
to plausibly infer from the allegations in the complaint that
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defendant Lewis was personally involved in the alleged due
process deprivation. Indeed, by plaintiff's own allegations,
by the time he spoke with defendant Lewis and requested
assistance, defendant Laliberte had already reached a decision
on the disciplinary charges.
Accordingly, insofar as plaintiff's Third Disciplinary Due
Process Claim is asserted against ORC Lewis, that claim is
dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)
(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) for failure to state a
claim upon which relief may be granted.
With respect to the Fifth Disciplinary Due Process Claim,
the complaint alleges that plaintiff was issued a misbehavior
report by defendant Moss based on a milk throwing incident
on May 4, 2025, and defendant Ciancio thereafter found
plaintiff guilty of the charges and imposed an “excessively
harsh sentence” that included loss of package, phone, tablet,
commissary, and property privileges for 120 days and six
months loss of good time credits. Compl. at 236-239.
*38 Plaintiff does not allege that he was innocent of the
charges in the misbehavior report. Nor does plaintiff explain
how he believes he was denied the process to which he was
entitled during his disciplinary hearing. Rather, he alleges
more generically that defendant Ciancio should not have
served as the hearing officer based on a bias against plaintiff,
and that the imposed sentence was “excessively harsh.”
However, the fact that this official previously served as a
hearing officer and issued a ruling that was reversed in a state
court proceeding does not, without more, plausibly suggest
that plaintiff was deprived of the process to which he was
entitled.
Furthermore, a loss of privileges for 120 days, without
any accompanying restrictive confinement, does not trigger
a liberty interest. See, e.g., Burrell v. Durkin, No. 9:22-
CV-0102 (BKS/ML), 2022 WL 22955445, at *11 (N.D.N.Y.
Apr. 20, 2022) (“Defendant LeClaire, however, sanctioned
plaintiff only to 10 days of SHU confinement and 90
days loss of commissary, packages, and phone privileges....
None of these sanctions constitute an atypical or significant
hardship under the Due Process Clause.”); Taylor v. Glover,
No. 21-CV-06452, 2024 WL 5090172, at *8 (S.D.N.Y.
Dec. 11, 2024) (“[C]ourts in the Second Circuit have
consistently held the loss of commissary, package, and
visitation privileges does not implicate liberty interests.”);
McLellan v. Chapdelaine, No. 16-CV-02032, 2017 WL
388804, at *4 (D. Conn. Jan. 27, 2017) (holding that loss
of commissary for sixty days did not constitute significant
or atypical hardship); Woodward v. Lytle, No. 9:16-CV-1174
(NAM/DEP), 2016 WL 11906586, at *6 (N.D.N.Y. Oct.
19, 2016) (“[P]laintiff has not alleged facts which plausibly
suggest that he enjoyed a protected liberty interest in
being free from the sanction related to the conditions of
his confinement – ninety (90) days loss of privileges.”);
Alexander v. Fischer, No. 9:14-CV-0548 (GLS/ATB), 2015
WL 10568892, at *4 (N.D.N.Y. Dec. 21, 2015) (“The loss of
visitation and related privileges, the only other deprivations
identified by plaintiff, do not rise to the level of an ‘atypical
and significant hardship’ so as to create a liberty interest
protected by procedural due process.”), adopted by 2016 WL
1261124 (N.D.N.Y. Mar. 30, 2016); Smart v. Goord, 441 F.
Supp. 2d 631, 640 (S.D.N.Y. 2006) (“[T]he loss of phones,
packages, and commissary privileges does not give rise to a
protected liberty interest under New York law.”). 9
9 Because the sanction allegedly included a loss
of good time credits, the disciplinary sentence
subjected plaintiff to “mixed sanctions” affecting
both the duration (recommended good time loss)
and conditions of his confinement (loss of
privileges), and plaintiff has not alleged that the
disciplinary determination was reversed in an
Article 78 proceeding. Thus, even if the loss of
privileges could be deemed sufficient to trigger
a liberty interest, plaintiff's claim would still be
barred by the favorable termination rule articulated
in Heck v. Humphrey, 512 U.S. 477 (1994) unless
he “abandon[ed], not just now, but also in any
future proceeding, any claims he may have with
respect to the duration of his confinement that arise
out of the proceeding[s] he is attacking in [this] §
1983 suit.” Peralta v. Vasquez, 467 F.3d 98, 103
(2d Cir. 2006) (holding that “a prisoner subject to
such mixed sanctions can proceed separately, under
§ 1983, with a challenge to the sanctions affecting
his conditions of confinement without satisfying
the favorable termination rule, but ... he can only
do so if he is willing to forgo once and for all any
challenge to any sanctions that affect the duration
of his confinement” (emphasis in original)).
*39 Accordingly, plaintiff's Fifth Disciplinary Due Process
Claim is dismissed without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) for failure to
state a claim upon which relief may be granted.
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Finally, with respect to the Sixth Disciplinary Due Process
Claim, the Court finds that the complaint alleges sufficient
facts for this claim to survive sua sponte review and require
a response. However, the disciplinary sentence imposed
by defendant Stanley implicates the validity of plaintiff's
disciplinary conviction and sentence because plaintiff was
subjected to “mixed sanctions” affecting both the duration
(recommended good time loss) and conditions of his
confinement (SHU). See Compl. at 233-236. Moreover,
plaintiff alleges that his Article 78 proceeding was pending as
of the filing of the complaint. Id. at 236.
Since plaintiff has not demonstrated that his disciplinary
disposition has been invalidated, Heck bars this due process
claim unless plaintiff “abandon[s], not just now, but also
in any future proceeding, any claims he may have with
respect to the duration of his confinement that arise out of the
proceeding[s] he is attacking in [this] § 1983 suit.” Peralta,
467 F.3d at 104. Accordingly, the Court directs plaintiff to
advise the Court in writing, within thirty (30) days of the
filing date of this Decision and Order, whether he waives
for all times all claims relating to the disciplinary sanctions
imposed by defendant Stanley affecting the duration of his
confinement in order to proceed with his claims challenging
the sanctions affecting the conditions of his confinement. The
Court specifically advises plaintiff that his failure to file this
statement (the “Peralta Waiver”) within the required time will
be interpreted as his refusal to waive these claims, and such
failure will result in the dismissal without prejudice of the
Sixth Disciplinary Due Process Claim.
12. Due Process Claim Based on OBS Cell Placement
At this stage of the proceeding, and mindful of the Second
Circuit's direction that a pro se plaintiff's pleadings must be
liberally construed, the Court finds that plaintiff's due process
claim against defendants Ferrone, Henry, Walker, McGraw,
Shue, Patek, Gabel, and Corrections Lieutenant John Doe
based on placing plaintiff in an OBS cell in December 2024
without a hearing survive sua sponte review and require
a response. In so ruling, the Court expresses no opinion
as to whether these claims can withstand a properly filed
dispositive motion.
13. Due Process Claim Based
on “Negative Informationals”
At this stage of the proceeding, and mindful of the Second
Circuit's direction that a pro se plaintiff's pleadings must be
liberally construed, the Court finds that plaintiff's due process
claims against defendant Hughes and the PMT members
based on the imposition of “negative informationals” and
“false refusals” that resulted in plaintiff being denied
privileges without a hearing survive sua sponte review and
require a response. In so ruling, the Court expresses no
opinion as to whether these claims can withstand a properly
filed dispositive motion.
14. Medical Privacy Claims
The Second Circuit has recognized a constitutional right to
privacy, which protects “the individual interest in avoiding
disclosure of personal matters.” Matson v. Bd. of Educ. of
City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011)
(citation omitted). Specifically, the Due Process Clause of
the Fourteenth Amendment protects a “right to privacy
[that] can be characterized as a right to ‘confidentiality,’ ”
which “includes the right to protection regarding information
about the state of one's health.” Doe v. City of N.Y., 15
F.3d 264, 267 (2d Cir. 1994). “[P]risoners retain a right to
privacy for medical information unless (1) that disclosure
was reasonably related to legitimate penological interests or
(2) the information ... was not the type of sensitive medical
information contemplated by the courts for constitutional
protection.” Simon v. N.Y.C. Dep't of Corr., No. 12-CV-8624,
2013 WL 4792840, at *2 (S.D.N.Y. Aug. 29, 2013) (citing
Powell v. Schriver, 175 F.3d 107, 111-13 (2d Cir. 1999)).
*40 At this stage of the proceeding, and mindful of the
Second Circuit's direction that a pro se plaintiff's pleadings
must be liberally construed, the Court finds that plaintiff's
medical privacy claims against defendant Mohammed,
Ferguson, and Schrader survive sua sponte review and require
a response. In so ruling, the Court expresses no opinion
as to whether these claims can withstand a properly filed
dispositive motion.
15. Destruction of Property Claims
The Supreme Court has held that even the unauthorized
intentional destruction of a prisoner's property may not be the
basis for constitutional claims if sufficient post deprivation
remedies are available to address the claim. Hudson, 468 U.S.
at 531 (citing Parratt v. Taylor, 451 U.S. 527, 541 (1981));
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see also Rivera-Powell v. New York City Board of Elections,
470 F.3d 458, 465 (2d Cir. 2006) (“When the state conduct
in question is random and unauthorized, the state satisfies
procedural due process requirements so long as it provides
meaningful post deprivation remedy.”). As noted, “New York
in fact affords an adequate post-deprivation remedy in the
form of, inter alia, a Court of Claims action.” Jackson, 256
F.3d at 96; Davis, 311 Fed. App'x at 400 (“The existence
of this adequate post-deprivation state remedy would thus
preclude [plaintiff's] due process claim under § 1983 [for
lost personal property].”). Moreover, the complaint is devoid
of allegations which plausibly suggest that adequate post-
deprivation remedies to pursue expenses associated with
plaintiff's lost or destroyed property were or are unavailable
to him.
Accordingly, plaintiff's Fourteenth Amendment due process
claim based on the loss or destruction of personal property is
dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)
(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) for failure to state a
claim upon which relief may be granted.
16. Denial of Adequate Grievance Channels
It is well-settled that an incarcerated individual has no
constitutional right of access to an internal grievance process.
Rhodes v. Hoy, No. 9:05-CV-0836 (FJS/DEP), 2007 WL
1343649, at *6 (N.D.N.Y. May 5, 2007) (noting that inmates
have “no constitutional right of access to the established
inmate grievance program”); Davis v. Buffardi, No. 9:01-
CV-0285 (PAM/GJD), 2005 WL 1174088, at *3 (N.D.N.Y.
May 4, 2005) (“[P]articipation in an inmate grievance process
is not a constitutionally protected right.”); Cancel v. Goord,
No. 00-CV-2042, 2001 WL 303713, at *3 (S.D.N.Y. Mar.
29, 2001) (holding that “inmate grievance procedures are
not required by the Constitution” and therefore failure to
see to it that grievances are properly processed does not
create a claim under Section 1983). Thus, an alleged failure
to afford an incarcerated individual meaningful access to
the internal grievance procedure, or meaningfully consider a
grievance, does not give rise to a cognizable constitutional
claim. See Perrilla v. Fischer, No. 13-CV-0398, 2013 WL
5798557, at *7 (W.D.N.Y. Oct. 28, 2013) (“[A]llegations
against [the Superintendent] and the IGRC Supervisor are
subject to dismissal because it is well-established that the
review, denial or affirmance of a denial of a grievance is
insufficient to establish personal involvement.”); Johnson v.
McKay, No. 9:14-CV-0803 (BKS/TWD), 2015 WL 1735102,
at *6 (N.D.N.Y. Apr. 16, 2015) (“[E]ven assuming that
defendants denied plaintiff evidence for or access to inmate
grievance procedures at Upstate Correctional Facility, such
facts simply do not implicate the First Amendment or give
rise to a constitutional claim.”).
*41 Furthermore, inmates do not have a due process right to
an investigation requested through a grievance. See DeShaney
v. Winnebego Soc. Servs., 489 U.S. 189, 196 (1989) (The
Due Process Clause “generally confers no affirmative right
to governmental aid, even where that aid may be necessary
to secure life, liberty, or property interests of which the
government itself may not deprive the individual.”); Pine v.
Seally, No. 9:09-CV-1198 (DNH/ATB), 2011 WL 856426,
at *9 (N.D.N.Y. Feb. 4, 2011) (“To the extent that plaintiffs
attempt to assert a separate constitutional claim of ‘failure
to investigate,’ the law is ... clear that inmates do not enjoy
a constitutional right to an investigation of any kind by
government officials.”) (citing Bernstein v. New York, 591
F. Supp. 2d 448, 460 (S.D.N.Y. 2008) (collecting cases));
Torres v. Mazzurca, 246 F. Supp. 2d 334, 341-42 (S.D.N.Y.
2003) (Inmates do not have a due process right to a thorough
investigation of grievances).
Accordingly, insofar as the complaint may be construed to
assert Fourteenth Amendment due process claims related to
plaintiff's lack of meaningful access to grievance channels
and/or the alleged failure to process and consider plaintiff's
grievances, such claims are dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) for failure
to state a claim upon which relief may be granted.
17. HIPAA Claims
To the extent that plaintiff claims that his HIPAA rights were
violated, “there is no private right of action under HIPAA,
express or implied.” Meadows v. United Servs., Inc., 963
F.3d 240, 242 (2d Cir. 2020) (per curiam). “Instead, HIPAA
provides for penalties to be imposed by the Secretary of the
Department of Health and Human Services.” Id. at 244.
Accordingly, plaintiff's HIPAA claims are dismissed pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1)
for failure to state a claim upon which relief may be granted.
18. Violation of the HALT Act
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Insofar as plaintiff has asserted one or more claims under the
HALT Act, there are at least three problems with allowing
plaintiff to litigate his claims under this statute in this case.
First, New York Correction Law § 24 provides a jurisdictional
limitation regarding state law claims asserted against any
officer or employee of the New York State Department
of Corrections and Community Supervision (“DOCCS”),
and thus, “the Court is obligated to address the issue on
initial review.” See Flynn v. Ward, No. 9:15-CV-1028 (GLS/
CFH), 2015 WL 8056060, at *6 (N.D.N.Y. Dec. 4, 2015).
“Claims for damages arising out of a DOCCS employee's
act performed within the scope of his employment may be
maintained in the New York Court of Claims as a claim
against the State of New York.” Heyliger v. Gebler, 496
F. Supp. 2d 250, 252 (W.D.N.Y. 2007). Courts look at the
following factors to determine whether a defendant's action is
within the scope of employment:
the connection between the time,
place and occasion for the act; the
history of the relationship between
employer and employee as spelled out
in the actual practice; whether the
act is one commonly done by any
employee; the extent of departure from
normal methods of performance; and
whether the specific act was one that
the employer could have reasonably
anticipated.
Ierardi v. Sisco, 119 F.3d 183, 187 (2d Cir. 1997) (quotations
and citations omitted).
The test to determine whether the defendants’ actions fall
within the scope of their employment is “whether the act
was done while the servant was doing his master's work
no matter how irregularly, or with what disregard of the
instructions.” Cruz v. New York, 24 F. Supp. 3d 299, 309
(W.D.N.Y. 2014) (citing Cepeda v. Coughlin, 128 A.D.2d
995, 996 (3d Dep't 1987)). “In certain circumstances, conduct
that is ‘prompted by purely personal reasons unrelated to
the employers’ interest,’ or ‘an intentional course of conduct
contrary to institutional rules, training and common sense,’
may be found outside the scope of employment.” Flynn, 2015
WL 8056060, at *6 (quoting Johnson v. N.Y. State Dep't of
Corr. Servs. and Cmty. Supervision, No. 11-CV-0079, 2013
W L 5347468, at *3 (W.D.N.Y. Sept. 23, 2013)).
*42 Here, the complaint lacks allegations which plausibly
suggest that any of the named defendants who were
responsible for plaintiff's restrictive confinement acted for
purely personal reasons unrelated to the employers’ interest.
Second, even assuming that New York Correction Law §
24 does not present a jurisdictional bar to plaintiff's claim
under the HALT Act, the federal statute governing the
exercise of supplemental jurisdiction over state law claims
allows this Court to exercise supplemental jurisdiction over
claims that are “so related to claims in the action within
such original jurisdiction that they form part of the same
case or controversy under Article III of the United States
Constitution.” 28 U.S.C. § 1367(a). However, even where
such a relationship exists between federal and state claims, 28
U.S.C. § 1367(c) provides that the district court “may decline
to exercise supplemental jurisdiction” for any of the following
reasons: “(1) the claim raises a novel or complex issue of State
law, (2) the claim substantially predominates over the claim or
claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it
has original jurisdiction, or (4) in exceptional circumstances,
there are other compelling reasons for declining jurisdiction.”
The Court has little trouble concluding that plaintiff's claims
under the HALT Act raise novel issues of state law. For
example, it is not entirely clear whether the law contemplates
a private right of action. Compare Suarez v. Annucci, No.
20-CV-7133, 2021 WL 6065765, at *13 (S.D.N.Y. Dec. 21,
2021) (holding that, for claims involving a prisoner with
serious mental illness who had been confined in segregated
housing, “Section 137(6) does include a private right of action
consistent with the legislative purposes and scheme”), with
Correa v. Lynch, No. 20-CV-2875, 2021 WL 2036697, at *8
(S.D.N.Y. May 20, 2021) (holding that there is no private
right of action allowing a prisoner to sue for a violation
of N.Y. Corr. Law § 137(5), which prohibits “degrading
treatment” or most corporal punishment). Furthermore, even
if the Court were to assume that the HALT Act contemplates
a private right of action, it is unclear how damages should be
calculated, or whether additional damages may be awarded by
a federal court that cannot be awarded to plaintiff in an Article
78 proceeding. These uncertainties present “other compelling
reasons” for this Court to decline to exercise supplemental
jurisdiction over plaintiff's state law claim. See 28 U.S.C. §
1367(c)(4).
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Third, plaintiff acknowledges in his pleading that he filed an
action in the New York Court of Claims, which is “intertwined
with [and] related to this matter[.]” See Compl. at 23. The
status of that proceeding is unknown. However, “[o]nce a
party chooses to litigate his claims by way of an Article
78 proceeding, he assumes the risk of collateral estoppel
being applied in a subsequent proceeding such as a § 1983
action.” Fortunatus v. Clinton Cnty., N.Y., 937 F. Supp. 2d
320, 332 (N.D.N.Y. 2013) (citing Giakoumelos v. Coughlin,
88 F.3d 56 (2d Cir. 1996) (applying collateral estoppel to
a previous Article 78 judgment where the plaintiff failed
to show that there were procedural deficiencies or a lack
of an opportunity to litigate)). Thus, while there does not
appear to be any prejudice to this Court declining to exercise
supplemental jurisdiction over plaintiff's state law claim,
there are undoubtedly concerns with doing the opposite.
*43 In light of the foregoing, the Court declines to exercise
supplemental jurisdiction over plaintiff's claims under the
HALT Act.
IV. FIRST MOTION FOR INJUNCTIVE RELIEF
Preliminary injunctive relief “ ‘is an extraordinary and drastic
remedy, one that should not be granted unless the movant, by
a clear showing, carries the burden of persuasion.’ ” Moore v.
Consol. Edison Co. of New York, Inc., 409 F.3d 506, 510 (2d
Cir. 2005) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972
(1997)). “In general, district courts may grant a preliminary
injunction where a plaintiff demonstrates ‘irreparable harm’
and meets one of two related standards: ‘either (a) a likelihood
of success on the merits, or (b) sufficiently serious questions
going to the merits of its claims to make them fair ground for
litigation, plus a balance of the hardships tipping decidedly in
favor of the moving party.’ ” Otoe-Missouria Tribe of Indians
v. New York State Dep't of Fin. Servs., 769 F.3d 105, 110 (2d
Cir. 2014) (quoting Lynch v. City of N.Y., 589 F.3d 94, 98
(2d Cir. 2009) (internal quotation marks omitted)). However,
when the moving party seeks a “mandatory injunction that
alters the status quo by commanding a positive act,” the
burden is even higher. Cacchillo v. Insmed, Inc., 638 F.3d
401, 406 (2d Cir. 2011) (citing Citigroup Global Mkts., Inc.
v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30,
35 n.4 (2d Cir. 2010) (internal quotation marks omitted)). A
mandatory preliminary injunction “should issue only upon a
clear showing that the moving party is entitled to the relief
requested, or where extreme or very serious damage will
result from a denial of preliminary relief.” Cacchillo, 638
F.3d at 406 (citing Citigroup Global Mkts., 598 F.3d at 35
n.4) (internal quotation marks omitted); see also Tom Doherty
Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33-34
(2d Cir. 1995) (a plaintiff seeking a mandatory injunction
must make a “clear” or “substantial” showing of a likelihood
of success on the merits of his claim).
The same standards used to review a request for a
preliminary injunction govern consideration of an application
for a temporary restraining order. Local 1814, Int'l
Longshoremen's Ass'n, AFL-CIO v. New York Shipping Ass'n,
Inc., 965 F.2d 1224, 1228 (2d Cir. 1992); Perri v. Bloomberg,
No. 06-CV-0403, 2008 WL 2944642, at * 2 (E.D.N.Y.
Jul. 31, 2008). The district court has wide discretion in
determining whether to grant preliminary injunctive relief.
Moore v. Consol. Edison Co. of New York, Inc., 409 F.3d
506, 511 (2d Cir. 2005). “In the prison context, a request for
injunctive relief must always be viewed with great caution
so as not to immerse the federal judiciary in the management
of state prisons.” Fisher v. Goord, 981 F. Supp. 140, 167
(W.D.N.Y. 1997) (citing Farmer v. Brennan, 511 U.S. 825,
846-47 (1994)) (other citations omitted).
“ ‘A showing of irreparable harm is the single most important
prerequisite for the issuance of a preliminary injunction.’
” Bisnews AFE (Thailand) Ltd. v. Aspen Research Group
Ltd., 437 Fed. App'x 57, 58 (2d Cir. 2011) (summary order)
(quoting Faiveley Transport Malmo AB v. Wabtec Corp.,
559 F.3d 110, 118 (2d Cir. 2009)). Generally, an alleged
violation of a constitutional right creates a presumption of
irreparable harm. Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir.
1996). However, speculative, remote or future injury is not
the province of injunctive relief. Los Angeles v. Lyons, 461
U.S. 95, 111-12 (1983); see also Garcia v. Arevalo, No. 93-
CV-8147, 1994 WL 383238, at *2 (S.D.N.Y. June 27, 1994)
(“It is well settled that an allegation of the mere possibility of
irreparable harm is insufficient to justify the drastic remedy of
preliminary injunction.... A party who seeks the extraordinary
remedy of a preliminary injunction must show the alleged
irreparable harm to be imminent, not remote or speculative,
and the alleged injury to constitute one that is incapable
of being fully remedied by monetary damages.” (citations
omitted)).
*44 Plaintiff's motion seeks affirmative injunctive relief
directing officials to “provide a medically appropriate course
of orthopedic follow-ups” for plaintiff's right knee, schedule
“follow-up treatment with the endocrinologist” for plaintiff's
thyroid and adrenal gland abnormalities, reschedule an MRI
for plaintiff's lower back, and transfer plaintiff to “an
appropriate correctional facility Special Population [and] or
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protective custody.” See First Motion for Injunctive Relief at
1-2.
Insofar as plaintiff seeks a transfer to another facility, in
general, it is DOCCS, and not this Court, that determines
where plaintiff will be housed during his period of
incarceration. See Meachum v. Fano, 427 U.S. 215, 229
(1976) (stating that “[t]he federal courts do not sit to supervise
state prisons, the administration of which is [of] acute interest
to the States”) (citations omitted); Olim v. Wakinekona, 461
U.S. 238, 248-49 (1983) (stating that inmates have no right
to be confined in a particular state or particular prison within
a given state); Montayne v. Haymes, 427 U.S. 236, 243
(1976) (holding that New York state prisoners have no right
to incarceration at a particular prison facility). It is well-
established that DOCCS has “broad leeway in deciding where
to house the inmates under its protective care.” McFadden v.
Solfaro, Nos. 95-CV-1148, 95-CV-3790, 1998 WL 199923,
at *10 (S.D.N.Y. Apr. 23, 1998).
With that said, upon review of the file in this matter, the
Court finds that a response to plaintiff's First Preliminary
Injunction Motion must be filed by the surviving defendants.
The Court directs these defendants, or their counsel, to
respond to plaintiff's motion (Dkt. No. 2) within thirty (30)
days of the date of service of the summons and complaint
upon any defendant. After a defendant has filed a response
to the motion, the Clerk shall return this file to the Court for
further review.
V. FURTHER FILINGS
As noted, this action was initially comprised of a 360-page
handwritten complaint and 264 pages of exhibits. Since the
complaint was filed, the Court has received over 1000 pages
of documents from plaintiff. See Dkt. Nos. 7, 8, 9, 10, 12, 13,
14, 15, 16, 17, 18.
By Text Order entered on October 16, 2025, the Honorable
Miroslav Lovric advised plaintiff that this Court “does not
accept submissions on a rolling basis[,]” and that “any
further submissions prior to a ruling on the sufficiency of
the complaint ... [would] be stricken from the docket.” Dkt.
No. 19. Despite this Text Order, plaintiff has continued to file
documents with the Court. See Dkt. Nos. 20, 21.
District courts have the “inherent authority to manage their
dockets” to promote “the efficient and expedient resolution
of cases.” Dietz v. Bouldin, 579 U.S. 40, 47 (2016) (citations
omitted). “Absent extraordinary circumstances, such as a
demonstrated history of frivolous and vexatious litigation, ...
or a failure to comply with sanctions imposed for such
conduct, ... a court has no power to prevent a party from
filing pleadings, motions or appeals authorized by the Federal
Rules of Civil Procedure.” Richardson Greenshields Sec.,
Inc. v. Lau, 825 F.2d 647, 649 (2d Cir. 1987). However, an
action cannot proceed unless and until service is completed.
Although it is the Court's obligation to assist with service
when a pro se prisoner is proceeding in forma pauperis, see
Fed. R. Civ. P. 4(c)(3) (Marshals Service must be appointed to
serve process when plaintiff is authorized to proceed in forma
pauperis); 28 U.S.C. § 1915(d) (“[T]he officers of the court
shall issue and serve all process and perform all duties in [in
forma pauperis] cases.”); see also Wright v. Lewis, 76 F.3d
57, 59 (2d Cir. 1996) (“By granting Wright leave to pursue
his § 1983 claim in forma pauperis, Magistrate Smith shifted
the responsibility for serving the complaint from Wright to
the court.”); Kavazanjian v. Rice, No. 03-CV-1923, 2005
WL 1377946, at *2 (E.D.N.Y., June 6, 2005) (noting that
“[f]or plaintiffs proceeding in forma pauperis ..., the U.S.
Marshal's Office—not the plaintiff—is primarily responsible
for effecting service.”), the Court cannot do so unless and
until the pro se prisoner has provided the required documents.
See Carpio v. Luther, No. 06-CV-0857, 2009 WL 605300,
at *1 (W.D.N.Y. Mar. 9, 2009) (acknowledging the Court's
“obligation to assist a pro se incarcerated litigant ... to cause
the summons and complaint to be served” but noting further
that “the plaintiff nonetheless retains the obligation to provide
the necessary information” for this to occur). 10
10 Pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure, in the absence of a showing of good
cause, “[i]f a defendant is not served within 90 days
after the complaint is filed, the court—on motion
or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that
defendant or order that service be made within a
specified time.”
*45 Moreover, Rule 41(b) of the Federal Rules of Civil
Procedure provides that a court may, in its discretion, dismiss
an action based upon the failure of a plaintiff to prosecute it, or
to comply with the procedural rules or orders of the court. Fed.
R. Civ. P. 41(b); see also Link v. Wabash R.R. Co., 370 U.S.
626 (1962). This power to dismiss may be exercised when
necessary to achieve orderly and expeditious disposition of
cases. See Freeman v. Lundrigan, No. 95-CV-1190 (RSP/
RWS), 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996).
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In light of the foregoing, and plaintiff's burdensome practices
to date, which has resulted in this Court spending considerable
time on this matter, plaintiff is advised that he must provide
the Court with all necessary copies of his complaint in order
for this case to proceed. Plaintiff is further advised that the
Court will not (1) consider any further submissions from
him until after receipt of the copies necessary for service, or
(2) accept any further pleading submissions from him until
after the completion of service, at which point any further
amendment must identify any remaining “Doe” officials in
this case, and be limited to the events discussed in the original
complaint.
VI. CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff's IFP Application (Dkt. No. 3) is
GRANTED. 11 The Clerk shall provide the superintendent
of the facility, designated by plaintiff as his current location,
with a copy of plaintiff's authorization form (Dkt. No. 4),
and notify the official that this action has been filed and that
plaintiff is required to pay the entire statutory filing fee of
$350.00 pursuant to 28 U.S.C. § 1915; and it is further
11 Plaintiff should note that although his IFP
Application has been granted, he will still be
required to pay fees that he may incur in this action,
including copying and/or witness fees.
ORDERED that the Clerk shall provide a copy of plaintiff's
authorization form (Dkt. No. 4) to the Financial Deputy of the
Clerk's Office; and it is further
ORDERED that the Clerk shall update the docket to identify
“Maintenance Man Slim” as “Dutcher”; and it is further
ORDERED that the following Section 1983 claims
SURVIVE sua sponte review and require a response: (1)
each of plaintiff's retaliation claims; (2) plaintiff's mail
tampering claims; (3) plaintiff's free exercise claims; (4)
plaintiff's Fourth Amendment privacy claims; (5) each of
plaintiff's excessive force and failure-to-intervene claims; (6)
plaintiff's First Medical Indifference Claim except insofar
as that claim is asserted against defendant Rosario; (7)
plaintiff's Third Medical Indifference Claim; (8) plaintiff's
Fourth Medical Indifference Claim; (9) plaintiff's Fifth
Medical Indifference Claim except insofar as that claim is
asserted against Nurse Jane Doe #1 and Nurse Jane Doe
#2; (10) plaintiff's Sixth Medical Indifference Claim; (11)
plaintiff's Eighth Medical Indifference Claim; (12) plaintiff's
Ninth Medical Indifference Claim; (13) plaintiff's Tenth
Medical Indifference Claim; (14) plaintiff's Eleventh Medical
Indifference Claim; (15) plaintiff's Second Failure-to-Protect
Claim; (16) plaintiff's Third Failure-to-Protect Claim insofar
as it is asserted against defendant Stevenson; (17) plaintiff's
First Conditions-of-Confinement Claim; (18) plaintiff's
Second Conditions-of-Confinement Claim; (19) plaintiff's
Fourth Conditions-of-Confinement Claim; (20) plaintiff's
Fifth Conditions-of-Confinement Claim; (21) plaintiff's
Sixth Conditions-of-Confinement Claim; (22) plaintiff's First
Disciplinary Due Process Claim; (23) plaintiff's Third
Disciplinary Due Process Claim except insofar as it is asserted
against ORC Lewis; (24) plaintiff's Fourth Disciplinary Due
Process Claim; (25) plaintiff's Fourteenth Amendment due
process claims against defendants Ferrone, Henry, Walker,
McGraw, Shue, Patek, Gabel, and Corrections Lieutenant
John Doe based on placing plaintiff in an OBS cell in
December 2024 without a hearing; (26) plaintiff's Fourteenth
Amendment due process claims against the PMT members
and defendant Hughes based on the imposition of “negative
informationals” and “false refusals” that resulted in the denial
of privileges without a hearing; (27) plaintiff's Fourteenth
Amendment medical privacy claims against defendants
Mohammed, Ferguson, and Schrader; and it is further
*46 ORDERED that plaintiff advise the Court in writing,
within thirty (30) days of the filing date of this Decision
and Order, whether he waives for all times all claims in
this action relating to the Sixth Disciplinary Due Process
Claim, i.e., the disciplinary sanctions imposed by defendant
Stanley on or around June 2, 2025, affecting the duration
of his confinement (i.e., the loss of good time) in order to
proceed with his claims challenging the sanctions affecting
the conditions of his confinement. 12 The Court specifically
advises plaintiff that his failure to file this “Peralta Waiver”
within the required time will be interpreted as his refusal
to waive these claims, and such failure will result in the
dismissal without prejudice of the Fourteenth Amendment
due process claims against defendants Christopher and
Stanley; and it is further
12 In the alternative, plaintiff may demonstrate
that the disciplinary sentence was reversed or
invalidated.
ORDERED that the Court declines to exercise supplemental
jurisdiction over plaintiff's claims under N.Y. Correction
Law § 137(6), which are DISMISSED without prejudice
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McFadden v. Annucci, Slip Copy (2025)
2025 WL 3265447
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 39
pursuant to Fed. R. Civ. P. 12(b)(1) and 28 U.S.C. § 1367(c);
and it is further
ORDERED that plaintiff's remaining Section 1983 claims
are DISMISSED without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a
claim upon which relief may be granted; 13 and it is further
13 Should plaintiff seek to pursue any of the claims
dismissed without prejudice, he must file an
amended complaint, subject to the limitations set
forth above. Any amended complaint, which shall
supersede and replace the original complaint in
its entirety, must allege claims of misconduct or
wrongdoing against each named defendant which
plaintiff has a legal right to pursue, and over
which jurisdiction may properly be exercised. Any
amended complaint filed by plaintiff must also
comply with the pleading requirements of Rules
8 and 10 of the Federal Rules of Civil Procedure.
Plaintiff's deadline to amend his pleading as a
matter of course is set forth in Rule 15(a) of the
Federal Rules of Civil Procedure.
ORDERED that plaintiff's Second Motion for Injunctive
Relief (Dkt. No. 11) is DENIED as duplicative of the First
Motion for Injunctive Relief; and it is further
ORDERED that a response to plaintiff's first motion for
preliminary injunctive relief (Dkt. No. 2) be filed by the
remaining defendants, or their counsel, within thirty (30) days
of the date of service of the summons and complaint on any
defendant; and it is further
ORDERED that upon receipt from plaintiff of 119 copies
of his complaint (without exhibits), the Clerk shall issue
summonses and forward them, along with these copies, to the
United States Marshal for service upon defendants Chandler,
Mazzone, Manson, Hamilton, Penree, Surgey, Clapper,
Schrader, Chaudry, Czerwinski, Schrader, Dana, Candy
Hayes, Banks, Brown, Walhby, Ajukik, Hosma, Mohammed,
Abdelwahab, Noble, Max, Deck, Ardo, Venettozzi, Conrad,
Passage, Hilton, McKoy, Mayo, Klien, Hall, Yaddow, Tapia,
Ross, Patek, Gabel, Shue, Lamoch, Aiken, Kallay, Jennifer
Christopher, Christopher Hayes, Hoffman, LaCoppola, Nurse
Jane Doe, Russell, Paladino, Fischer, Harris, Storey, Fish,
Kallay, Dorchester, Perham, Schiavi, Tourtelot, Costello,
Dundden, Johnson, Carpenter, Bishop, Murphy, Mosher,
Laliberte, Ferrone, Prisma, Walker, Reddner, Slate, Hark,
Smalls, Henry, McGraw, Sullivan, Martuscello, Annucci,
Rodriguez, Matlock, Stevens, Gardner, Dehli, Martin,
Nicholas, Peters, Ferris, Ward, Corrections Officer Lewis,
Lavinski, Kowalski, Fuse, Bailey, Cole, Klossner, C. Zangari,
D. Zangari, Galusha, Fear, Ortiz, Bartlett, Townsend, Moss,
Seguin, Luther, Annarino, Stevenson, Johnson, Hamlin,
Worden, Rogers, Short, Fann, Mr. Dutcher, Burns, Barbosa,
Ciancio, Everson, Stanley, and Hughes (collectively, the
“Non-Doe Surviving Defendants”). 14 The Clerk shall
forward a copy of the summons and complaint by electronic
mail to the Office of the New York State Attorney General,
together with a copy of this Decision and Order; and it is
further
14 Summonses will not issue for Corrections Officers
John Doe #1-5, Corrections Lieutenant John Doe,
John Doe Short Guy, John Doe Tall Guy, and
National Guard Officer John Doe because the U.S.
Marshal cannot effect service on an individual who
has not been identified by name.
*47 ORDERED that the Clerk TERMINATE all officials
other than the aforementioned defendants for which the Clerk
has been directed to issue summonses; and it is further
ORDERED that plaintiff take reasonable steps to ascertain
the identity of the remaining “Doe” defendants, and when
identified, seek to amend the complaint to add the individuals
as defendants in this action pursuant to Federal Rule of Civil
Procedure 15(a); and it is further
ORDERED that a response to the complaint be filed by the
Non-Doe Surviving Defendants, or their counsel, as provided
for in the Federal Rules of Civil Procedure; and it is further
ORDERED that all pleadings, motions and other documents
relating to this action be filed with the Clerk of the United
States District Court, Northern District of New York, 7th
Floor, Federal Building, 100 S. Clinton St., Syracuse, New
York 13261-7367. Plaintiff must comply with any requests
by the Clerk's Office for any documents that are necessary to
maintain this action. All parties must comply with Local Rule
7.1 of the Northern District of New York in filing motions.
All motions will be decided on submitted papers without oral
argument unless otherwise ordered by the Court. Plaintiff is
also required to promptly notify, in writing, the Clerk's
Office and all parties or their counsel of any change in
plaintiff's address; his failure to do so may result in the
dismissal of this action; and it is further
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McFadden v. Annucci, Slip Copy (2025)
2025 WL 3265447
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 40
ORDERED that the Clerk shall serve a copy of this Decision
and Order on plaintiff.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 3265447
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 50 of 90

McFadden v. Annucci
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings
There are no Filings for this citation.
History
There are no History results for this citation.
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 51 of 90

McFadden v. Annucci
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 52 of 90

Powell v. Ocwen Loan Servicing, LLC, Not Reported in Fed. Rptr. (2024)
2024 WL 763406
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 763406
Only the Westlaw citation is currently available.
United States Court of Appeals, Second Circuit.
Gary POWELL, Gail Powell, Plaintiffs-Appellants,
v.
OCWEN LOAN SERVICING, LLC, as Servicer
for Deutsche Bank National Trust Company, PHH
Mortgage, DBA Newrez, Hinshaw & Culbertson,
LLP, Does, 1-50, 1 Defendants-Appellees.
1 The Clerk of Court is respectfully directed to
amend the official caption as set forth above.
23-421
|
February 26, 2024
Appeal from a judgment of the United States District Court
for the District of Connecticut (Kari A. Dooley, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is AFFIRMED IN PART and
VACATED and REMANDED IN PART.
Attorneys and Law Firms
FOR PLAINTIFFS-APPELLANTS: Gary Powell, Gail
Powell, pro se, Wallingford, CT.
FOR DEFENDANTS-APPELLEES: Marissa I. Delinks,
Aaron A. Fredericks, Hinshaw & Culbertson LLP, Boston,
MA.
PRESENT: DEBRA ANN LIVINGSTON, Chief Judge,
GERARD E. LYNCH, BETH ROBINSON, Circuit Judges.
SUMMARY ORDER
*1 Because we write primarily for the parties, who are
familiar with the history of this case, we recite only what is
necessary to explain our decision. In 2018, a Connecticut state
court entered a judgment of foreclosure on the Wallingford
home of plaintiffs Gary and Gail Powell. In the years since,
the Powells have brought a variety of state and federal
challenges seeking to stave off the sale of their home—at least
in part successfully, as the sale does not appear to have taken
place yet.
In 2020, during the pendency of a prior federal lawsuit filed
after the initial state judgment of foreclosure, the Powells
claim they entered into a settlement agreement with their
loan servicer, which was intended to end the state and federal
litigation. Although the copy of the agreement provided by
the Powells is heavily redacted, the agreement appears to be
aimed at giving the Powells an opportunity to pay off their
outstanding debt on more favorable terms.
The Powells filed this lawsuit in December 2021, alleging that
the defendants—primarily, servicer PHH Mortgage, DBA
Newrez (“PHH Mortgage”) 2 and its law firm, Hinshaw
& Culbertson LLP (“Hinshaw”)—failed to perform under
the settlement agreement. The Powells bring various state
law claims, with their main count raising a breach-of-
contract claim, and they seek enforcement of the agreement,
declaratory relief, and awards of attorney's fees and damages.
2 We do not address the claims against defendant
Ocwen Loan Servicing (“Ocwen”) because PHH
Mortgage is Ocwen's successor by merger.
The defendants moved to dismiss the complaint, primarily on
the ground that the action was barred by the Rooker-Feldman
doctrine. The district court agreed, first dismissing the claims
against Hinshaw because it is not a party to the settlement
agreement (and concluding that it was otherwise protected by
litigation privilege) and then the remainder of the complaint
for lack of jurisdiction under the Rooker-Feldman doctrine.
See Powell v. Ocwen Loan Servicing, LLC, No. 3:21-
cv-01605 (KAD), 2023 WL 2538127 (D. Conn. Mar. 16,
2023).
This appeal followed. We conduct de novo review of an order
dismissing a complaint under Fed. R. Civ. P. 12(b)(1) for
lack of subject matter jurisdiction and 12(b)(6) for failure
to state a claim. Jaghory v. N.Y. Sate Dep't of Educ., 131
F.3d 326, 329 (2d Cir. 1997). Because the Powells have been
pro se throughout this federal litigation, we construe their
submissions liberally and interpret them to raise the strongest
arguments they suggest. Hunter v. McMahon, 75 F.4th 62, 67
(2d Cir. 2023).
Given that the Powells do not challenge the district court's
dismissal of Hinshaw from this case, we affirm that portion
of the district court's judgment and deem the Powells’ claims
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 53 of 90

Powell v. Ocwen Loan Servicing, LLC, Not Reported in Fed. Rptr. (2024)
2024 WL 763406
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
against Hinshaw abandoned. See Debique v. Garland, 58
F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any
claims not adequately presented in an appellant's brief, and
an appellant's failure to make legal or factual arguments
constitutes abandonment.” (internal quotation marks and
citation omitted)).
*2 Because the Powells focus their appeal only on the
district court's dismissal based on the Rooker-Feldman
doctrine, we proceed to consider that issue as to the remaining
defendants. “[U]nder what has come to be known as the
Rooker-Feldman doctrine, lower federal courts are precluded
from exercising appellate jurisdiction over final state-court
judgments” because 28 U.S.C. § 1257(a) vests federal
appellate jurisdiction over state judgments exclusively in the
United States Supreme Court. Lance v. Dennis, 546 U.S. 459,
463 (2006) (per curiam). In this Circuit, an action is barred
under Rooker-Feldman only if “(1) the federal-court plaintiff
lost in state court; (2) the plaintiff complains of injuries caused
by a state court judgment; (3) the plaintiff invites review and
rejection of that judgment; and (4) the state judgment was
rendered before the district court proceedings commenced.”
Hunter, 75 F.4th at 68 (internal quotation marks and citation
omitted).
We conclude that Rooker-Feldman does not prevent the
exercise of federal jurisdiction in this case. The Powells do not
seek direct review and rejection of the foreclosure judgment.
See Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d
423, 427 (2d Cir. 2014). Instead, they allege nonperformance
under a settlement agreement in which the defendants, having
obtained a judgment, did not seek to immediately collect on it,
and instead offered the Powells terms for retaining ownership
of their home.
In effect, the Powells challenged the way in which the
defendants chose to enforce (or not enforce) the foreclosure
judgment they obtained in state court. Cf. Bell v. New Jersey,
461 U.S. 773, 779 (1983) (explaining that a judgment is
generally not self-executing, and a party who secures a
money judgment “may have to undertake further proceedings
to collect the damages awarded”). The harm here flows
from allegedly wrongful conduct in breaching a settlement
agreement, not the foreclosure judgment itself. See Sung Cho
v. City of New York, 910 F.3d 639, 647 (2d Cir. 2018) (“[T]he
complaint attacks the conduct itself, and the claim does not
function as a de facto appeal.”) As we have explained, state-
court losers may challenge a party's conduct in litigation that
resulted in a foreclosure judgment if it does not require the
federal court to “consider[ ] independently ... the merits of
that foreclosure judgment.” Hansen v. Miller, 52 F.4th 96, 100
(2d Cir. 2022). The same is true of conduct in litigation that
follows from a state court foreclosure judgement.
Our decision is narrow. We do not decide whether the Powells
have a valid or plausible breach claim, or even whether the
defendants are bound by the alleged settlement agreement.
We express no opinion as to whether the Powells’ breach
of contract claims or claims for relief are subject to issue
preclusion on the basis of state court rulings. We conclude
only that jurisdiction to enforce this alleged settlement
agreement, whether by awarding damages or compelling
performance by PHH, is not barred by Rooker-Feldman
simply because the settlement agreement was ancillary to a
state court judgment.
Although Rooker-Feldman is not a bar to jurisdiction in
this case, the federal courts may lack jurisdiction due
to incomplete diversity. This Court has the “independent
obligation to consider the presence or absence of subject
matter jurisdiction sua sponte.” Joseph v. Leavitt, 465 F.3d 87,
89 (2d Cir. 2006). “[T]he party seeking to invoke jurisdiction
under 28 U.S.C. § 1332 bears the burden of demonstrating that
the grounds for diversity exist and that diversity is complete.”
Herrick Co. v. SCS Commc'ns, Inc., 251 F.3d 315, 322–23 (2d
Cir. 2001) (internal quotation marks and citation omitted).
The Powells did not satisfy this obligation. First, their
complaint failed to plead that the amount in controversy
“exceeds the sum or value of $75,000.” 28 U.S.C. § 1332(a).
And, more crucially, the Powells did not set out a complete
and accurate accounting of the defendants’ citizenship. They
identified Hinshaw as a Massachusetts citizen, but a law
partnership like Hinshaw's “has the citizenship of each
of its partners” for the purposes of establishing diversity.
Herrick, 251 F.3d at 322. Although we affirm Hinshaw's
dismissal, the Powells have also not properly alleged the
citizenship of PHH Mortgage, a corporation. For the purposes
of diversity jurisdiction, a corporation is a citizen of both
its state of incorporation and its principal place of business.
Carter v. HealthPort Techs., LLC, 822 F.3d 47, 60 (2d Cir.
2016). Here, the Powells have only alleged PHH Mortgage's
principal place of business. Accordingly, if the defendant
is a citizen of Connecticut, the required complete diversity
would be lacking because the Powells allege that they are
citizens of Connecticut. Because the factual record does not
definitively establish or defeat diversity jurisdiction, we leave
this question for the district court to decide.
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Powell v. Ocwen Loan Servicing, LLC, Not Reported in Fed. Rptr. (2024)
2024 WL 763406
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
*3 We do not reach the remaining arguments in light of our
disposition above. Accordingly, we AFFIRM IN PART and
VACATE and REMAND IN PART for further proceedings
consistent with this order.
All Citations
Not Reported in Fed. Rptr., 2024 WL 763406
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 55 of 90

Powell v. Ocwen Loan Servicing, LLC
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (10)
Title PDF Court Date Type
1. Brief of Defendants-Appellees
Gary POWELL; Gail Powell, Plaintiffs-Appellants,
v. OCWEN LOAN SERVICING, LLC, as Servicer
for Deutsche Bank National Trust Company, PHH
Mortgage d/b/a NewRez, and Hinshaw & Culbertson LLP,
Defendants-Appellees.
2023 WL 5747934
— C.A.2 Aug. 31, 2023 Brief
2. Brief of Defendants-Appellees
Gary POWELL; Gail Powell, Plaintiffs-Appellants,
v. OCWEN LOAN SERVICING, LLC, as Servicer
for Deutsche Bank National Trust Company, PHH
Mortgage d/b/a NewRez, and Hinshaw & Culbertson LLP,
Defendants-Appellees.
2023 WL 5955229
— C.A.2 Aug. 31, 2023 Brief
3. Complaint and Jury Demand
Gary POWELL, Gail Powell, Plaintiff, v. OCWEN LOAN
SERVICING, LLC as Servicer for Deutsche Bank National
Trust Company; Phh Mortgage dba Newrez; Hinshaw &
Culbertson, LLP; Does 1-50., Defendants.
2021 WL 5792706
— D.Conn. Dec. 03, 2021 Pleading
4. Plaintiffs Motion for Reconsideration on Tro
Gary POWELL, Gail Powell, Plaintiff, v. OCWEN LOAN
SERVICING, LLC as Servicer for Deutsche Bank National
Trust Company; PHH Mortgage dba Newrez; Hinshaw &
Culbertson, LLP; Does 1-50, Defendants.
2022 WL 19073382
— D.Conn. Sep. 19, 2022 Motion
5. Plaintiffs Surreply Opposition to Defendants
Motion to Dismiss
Gary POWELL, Gail Powell, Plaintiff, v. OCWEN LOAN
SERVICING, LLC as Servicer for Deutsche Bank National
Trust Company; PHH Mortgage dba Newrez; Hinshaw &
Culbertson, LLP; Does 1-50., Defendants.
2022 WL 19073384
— D.Conn. Aug. 17, 2022 Motion
6. Defendants' Reply Memorandum in Support of
Motion to Dismiss
Gary POWELL and Gail Powell, Plaintiffs, v. OCWEN
LOAN SERVICING, LLC as Servicer for Deutsche Bank
National Trust Company, PHH Mortgage d/b/a Newrez,
and Hinshaw & Culbertson LLP, Defendants.
2022 WL 19073381
— D.Conn. Aug. 02, 2022 Motion
7. Plaintiffs Opposition to Defendants Motion to
Dismiss
Gary POWELL, Gail Powell, Plaintiff, v. OCWEN LOAN
SERVICING, LLC as Servicer for Deutsche Bank National
Trust Company; PHH Mortgage dba Newrez; Hinshaw &
Culbertson, LLP; Does 1-50., Defendants.
2022 WL 19073383
— D.Conn. July 20, 2022 Motion
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 56 of 90

Powell v. Ocwen Loan Servicing, LLC
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Title PDF Court Date Type
8. Defendants Memorandum of Law in Support of
their Motion to Dismiss
Gary POWELL and Gail Powell, Plaintiffs, v. OCWEN
LOAN SERVICING, LLC as Servicer for Deutsche Bank
National Trust Company, PHH Mortgage d/b/a Newrez,
and Hinshaw & Culbertson LLP, Defendants.
2022 WL 19073376
— D.Conn. June 30, 2022 Motion
9. Docket 23-421
Powell v. Ocwen Loan Servicing, LLC
— C.A.2 Mar. 23, 2023 Docket
10. Docket 3:21-CV-01605
Powell et al v. Ocwen Loan Servicing, LLC et al
— D.Conn. Dec. 03, 2021 Docket
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 57 of 90

Powell v. Ocwen Loan Servicing, LLC
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (4)
Direct History (3)
1. Powell v. Ocwen Loan Servicing, LLC
2023 WL 2538127 , D.Conn. , Mar. 16, 2023
Affirmed in Part, Vacated in Part, Remanded by
2. Powell v. Ocwen Loan Servicing, LLC
2024 WL 763406 , 2nd Cir.(Conn.) , Feb. 26, 2024
On Remand to
3. Powell v. Ocwen Loan Servicing, LLC
2024 WL 5239340 , D.Conn. , Dec. 27, 2024
Related References (1)
4. Powell v. Ocwen Loan Servicing, LLC
2022 WL 4095784 , D.Conn. , Sep. 07, 2022
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 58 of 90

Pina v. United States, Not Reported in Fed. Supp. (2021)
2021 WL 2019003
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 2019003
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Frederick D. PINA, Plaintiff,
v.
The UNITED STATES of America, Defendant.
20-CV-1371 (PAE) (BCM)
|
Signed 04/20/2021
Attorneys and Law Firms
Frederick D. Pina, Staten Island, NY, Pro Se.
Joshua Evan Kahane, U.S. Attorney Office SDNY, New York,
NY, for Defendant.
REPORT AND RECOMMENDATION
TO THE HON. PAUL A. ENGELMAYER
BARBARA MOSES, United States Magistrate Judge
*1 Plaintiff Frederick D. Pina, proceeding pro se on behalf
of himself and his company, Japanese Juices, LLC (Japanese
Juices) filed this action on February 14, 2020, pursuant to
the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346,
et seq., seeking damages arising out of a May 31, 2018
collision between a Japanese Juices vehicle, driven by Pina,
and a United States Postal Service (USPS) truck. Pina alleges
that the USPS truck crashed into the rear of his vehicle – a
2017 Cadillac sedan – which injured him, damaged the car,
and caused Japanese Juices to lose a “highly lucrative new
beverage contract” with Delta Airlines, Inc. (Delta) valued at
$146 million. Compl. (Dkt. No. 2) ¶¶ 1-2, 8-10. On March 5,
2020, the Court (McMahon, C.J.) dismissed Japanese Juices
as a plaintiff, without prejudice, because a limited liability
company can only appear in federal court through a licensed
attorney. (Dkt. No. 3.) 1
1 The only plaintiff listed in the caption of the
Complaint is Japanese Juices. However, Chief
Judge McMahon liberally construed the document
to assert a claim on behalf of Pina as well as
Japanese Juices, and gave Pina an opportunity to
submit an application to proceed in forma pauperis
in his own name as plaintiff, which he did on
March 12, 2020. (Dkt. No. 4.) That application was
granted on July 7, 2020. (Dkt. No. 5.)
Now before me for report and recommendation (Dkt. No.
18) is defendant's motion (Dkt. No. 14), made pursuant
to Fed. R. Civ. P. 12(b)(1), to dismiss all claims other
than those seeking damages for personal injuries to plaintiff
Pina and/or automobile repair costs incurred as a result
of the accident. Defendant argues that because plaintiff's
administrative FTCA claim, submitted to the USPS in June
2018, sought only personal injury damages (in the amount of
$400,000) and property damage with respect to the vehicle
(in the amount of $50,000), plaintiff has failed to exhaust
his administrative remedies with regard to the alleged lost
business opportunity, and with regard to any damages beyond
the $450,000 sought in his administrative claim.
In his opposition memorandum (Pl. Opp. Mem.) (Dkt.
No. 25), plaintiff does not dispute that his administrative
claim sought relief limited to injuries to his person and
damage to the vehicle, but blames his prior counsel,
Thomas W. Hochberg, for representing him poorly during the
administrative process, and further contends that the USPS
examiner/adjuster who denied his claim, Kimberly Herbst,
“mislead [sic] Plaintiff” into discharging his counsel, only to
“immediately reject” his claim thereafter. Pl. Opp. Mem. at
1. Plaintiff also argues that he and his company “are one and
of the same,” id. at 3-4, but does not explain how that would
excuse him or it from presenting the lost profits claim to the
USPS.
For the reasons discussed below, I respectfully recommend
that defendant's motion be granted and that plaintiff's claims
be dismissed except as to the damages that he sought before
the agency for his personal injuries and property damage.
I. BACKGROUND
A. The Complaint
*2 Plaintiff alleges that he is the founder and CEO of
Japanese Juices, a start-up beverage company aimed at
the commercial airline industry, which at the time of the
accident was “in a year's long highly confidential” and
“highly sensitive” negotiation with Delta concerning a “new
beverage contract” tentatively valued (plaintiff does not say
by whom) at $146 million. Compl. ¶¶ 2, 8-10, 26. On
May 31, 2018, plaintiff was operating his company-owned
Cadillac in Manhattan when a USPS truck “violently struck
and side-swiped the front left side of [his] vehicle,” causing
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damage to the vehicle and unspecified injures to plaintiff
himself, forcing him to “abandon all business operations” so
that he could tend to his injuries “and other family-related
matters.” Id. ¶¶ 8-9. Plaintiff's injuries required “a battery
of [ ] physical therapy sessions[,] which were medically
required and directed by his prior counsel.” Id. ¶ 10. He also
suffered emotional damages. Id. As a result, plaintiff and his
company lost the prospective contact with Delta. Id. Having
missed “this rare opportunity,” Japanese Juices suspended its
operations. Id. 2
2 Plaintiff attaches three email exchanges between
himself and various Delta personnel, all dated
between November 7, 2018 (six months after the
accident) and July 28, 2019 (fourteen months
after the accident). Compl. Ex. B. In each email
exchange, plaintiff expresses an interest in a
possible business partnership with Delta, only to be
told that Delta is not interested “at this time” but
would “keep you in mind.” Id.
According to plaintiff, the New York Police Department's
accident report “place[d] all legal liability” on the USPS
driver. Compl. at ECF page 3; see also id. Ex. A (NYPD
accident report). 3 Nonetheless, after initially offering him a
$5,222.37 settlement (which he rejected), the USPS, acting
through Herbst, denied his claim. Id. at ECF pages 6-7
(August 27, 2019 letter from Herbst to plaintiff). On this basis,
plaintiff contends that the United States is responsible for all
of his losses, including $146 million for the lost opportunity
with Delta, attorney's fees, $200,000 in “lost company
income,” $7000 for car repair costs, including storage fees,
and $6000 for “reimbursement of a loss commercial insurance
policy.” Compl. at ECF pages 4-5. 4
3 The accident report itself does not appear to contain
that conclusion. It does contain a diagram, based on
the statements made at the scene by both drivers,
indicating that the USPS driver attempted to make
a right turn from the left lane, and in the process
cut off Pina's vehicle. Compl. Ex. A, at 2. The
USPS driver told the NYPD that he “did not see”
plaintiff's car. Id. at 1. The accident report also
states that there were “no injuries reported.” Id.
4 Pina's Prayer for Relief does not expressly request
personal injury damages, but it does seek “such
other relief as the Court deems just and proper.”
Compl. at ECF pages 4-5.
B. The Motion Papers
Defendant filed its motion to dismiss on September 11, 2020,
supported by the Declaration of Kimberly Herbst, who attests
that on June 11, 2018, plaintiff – through his then-attorney
Hochberg – filed an administrative claim on Standard Form
95 (SF-95) with the USPS, in his own name, seeking $400,000
for neck pain and a pinched nerve in his back, and $50,000 for
damage to the Cadillac. Herbst Decl. (Dkt. No. 16) ¶ 3 & Ex.
1. No other damages were described or sought. By letter dated
August 20, 2019, Hochberg withdrew as counsel for plaintiff,
id. Ex. 2, and stated that Herbst “may speak with Mr. Pina
directly.” Id. Ex. 2. By letter dated August 27, 2019, addressed
directly to Pina and sent by certified mail, the USPS denied
his claims, noting that he had previously refused its settlement
offer of $5,222.37. Id. Ex. 3.
Plaintiff filed his opposition memorandum on October 30,
2020, attaching a print-out from the Internal Revenue Service
website regarding the tax treatment of sole proprietorships,
Pl. Opp. Mem. Ex. A, and a series of (unauthenticated)
emails among himself, Hochberg and Herbst. Id. Ex. B. In
an email dated August 22, 2019, addressed to Hochberg and
copied to Herbst, plaintiff stated, among other things, that
his experience with Hochberg had been “frustrating,” and
directed his attorney to “send me a copy of your withdrawal
letter to Ms. Herbst.” Id. at ECF page 13.
*3 Defendant filed a reply memorandum on November 6,
2020. (Dkt. No. 26.) On November 11, 2020, without leave of
Court, plaintiff filed a sur-reply memorandum arguing that he
could not have failed to exhaust his administrative remedies
because there was a pending “criminal investigation by the
Government of New York” against Hochberg. Pl. Reply Mem.
(Dkt. No. 28) at ECF pages 2, 6. 5 Plaintiff goes on to argue
that he was deprived of his constitutional right to the effective
assistance of counsel. Id. at ECF page 4.
5 Plaintiff appears to be referring to a complaint
that he filed against Hochberg with the Attorney
Grievance Committee of the New York Supreme
Court, First Appellate Division. In correspondence
to this Court dated September 25, 2020, plaintiff
attached a copy of a letter dated June 23, 2020,
from the Grievance Committee, advising him that
it had received his request for reconsideration of
its determination to dismiss his complaint against
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Hochberg, and that he would be notified “when
the Committee reaches a decision.” (Dkt. No. 22 at
ECF page 4.)
II. ANALYSIS
A. Subject Matter Jurisdiction
“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
If a federal court determines that subject matter jurisdiction
does not exist, it “must dismiss the complaint[.]” Arbaugh
v. Y&H Corp., 546 U.S. 500, 514 (2006) (internal citation
omitted). See also Fed. R. Civ. P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.”). If the court determines
that it lacks subject matter jurisdiction over some, but not
all, claims, it may dismiss those claims over which it lacks
jurisdiction, while allowing the remaining claims to proceed.
See Suvak v. U.S., 2013 WL 2217171, at *3-4 (S.D.N.Y. May
21, 2013), adhered to on reconsideration, 2013 WL 2460192
(S.D.N.Y. June 7, 2013).
B. Standard on Motion to Dismiss Pursuant to Rule
12(b)(1)
In considering a motion to dismiss for lack of subject
matter jurisdiction, a federal trial court accepts as true all
factual allegations in the complaint and draws all reasonable
inferences in the plaintiff's favor. See, e.g., Liranzo v. United
States, 690 F.3d 78, 84 (2d Cir. 2012); Shipping Fin. Servs.
Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). However,
the court may also “refer to evidence outside the pleadings.”
Makarova, 201 F.3d at 113; see also APWU v. Potter, 343
F.3d 619, 627 (2d Cir. 2003) (quoting LeBlanc v. Cleveland,
198 F.3d 353, 356 (2d Cir. 1999)) (“[W]here jurisdictional
facts are placed in dispute, the court has the power and
obligation to decide issues of fact by reference to evidence
outside the pleadings, such as affidavits.”); Kamen v. Am.
Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) (“when,
as here, subject matter jurisdiction is challenged under Rule
12(b)(1), evidentiary matter may be presented by affidavit
or otherwise”). The plaintiff has the burden of proof and
“must prove the existence of subject matter jurisdiction by
a preponderance of the evidence.” Moser v. Pollin, 294 F.3d
335, 339 (2d Cir. 2002); accord Makarova, 201 F.3d at
113; Architectural Body Rsch. Found. v. Reversible Destiny
Found., 335 F. Supp. 3d 621, 633 (S.D.N.Y. 2018).
C. The Federal Tort Claims Act
The FTCA is the “exclusive” remedy against the United
States for “injury or loss of property, or personal injury or
death arising or resulting from the negligent or wrongful
act or omission of any employee of the Government while
acting within the scope of his office or employment.” 28
U.S.C. § 2679(b)(1). No FTCA suit may be filed “unless the
claimant shall have first presented the claim to the appropriate
Federal agency and his claim shall have been finally denied
by the agency in writing and sent by certified or registered
mail.” 28 U.S.C. § 2675(a). Moreover, an FTCA plaintiff
may not seek “any sum in excess of the amount of the
claim presented to the federal agency, except where the
increased amount is based upon newly discovered evidence
not reasonably discoverable at the time of presenting the
claim to the federal agency, or upon allegation and proof of
intervening facts, relating to the amount of the claim.” 28
U.S.C. § 2675(b); see also Lopez v. U.S., 312 F. Supp. 3d 390,
404 n.17 (S.D.N.Y. 2018) (limiting plaintiff's federal court
claim, which originally sought damages of $2.2 million, to $1
million, which is the amount she claimed in her administrative
demand). “The purpose of the exhaustion requirement is to
allow the government to ‘investigate, evaluate and consider
settlement of a claim,’ in order to ‘ease court congestion
and avoid unnecessary litigation, while making it possible for
the Government to expedite the fair settlement of tort claims
asserted against the United States.’ ” Furman v. U.S. Postal
Serv., 349 F. Supp. 2d 553, 557 (E.D.N.Y. 2004) (quoting
State Farm Ins. Co., v. United States, 2004 WL 1638175, *2
(E.D.N.Y. July 23, 2004)).
*4 Because the FTCA constitutes “a limited waiver by the
United States of its sovereign immunity,” its “limitations
foreclose suit unless the tort claimant has previously
presented to the appropriate administrative agency a claim
that meets the specific statutory requirements as to its form,
content, and timing.” Millares Guiraldes de Tineo v. U.S.,
137 F.3d 715, 719 (2d Cir. 1998). 6 The administrative
exhaustion requirement “is jurisdictional and cannot be
waived.” Celestine v. Mount Vernon Neighborhood Health
Ctr., 403 F.3d 76, 82 (2d Cir. 2005); see also Mayes v. United
States, 790 F. App'x 338, 339 (2d Cir. 2020) (summary order)
(“The district court lacks jurisdiction over FTCA claims if the
plaintiff failed to exhaust.”); Thompson v. United States, 795
F. App'x 15, 20 (2d Cir. 2019) (“A district court lacks subject
matter jurisdiction if the plaintiff failed to exhaust his FTCA
claims.”), cert. denied, 140 S. Ct. 2675, (2020).
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6 With regard to timing, 28 U.S.C. § 2401(b)
requires that the administrative claim be presented,
in writing, “within two years after such claim
accrues” (which in an auto accident case is
ordinarily the date of the accident), and that the
plaintiff commence suit “within six months after
the date of mailing ... of notice of final denial of
the claim by the agency to which it was presented.”
Hardie v. United States, 2020 WL 7485015, at *3
(E.D.N.Y. Nov. 17, 2020) (quoting 28 U.S.C. §
2401(b)).
Where, as here, an FTCA complaint is challenged, in whole or
in part, on administrative exhaustion grounds, “[t]he burden
is on plaintiff to demonstrate subject matter jurisdiction in
compliance with the FTCA's requirements.” Hardie, 2020
WL 7485015, at *3; see also Tamares v. United States, 2009
WL 691002, at *2 (S.D.N.Y. Mar. 17, 2009) (“The burden is
on plaintiff to plead and prove compliance with the FTCA's
statutory requirements in order for a district court to have
subject matter jurisdiction over the claim.”). Those statutory
requirements are “strictly construed.” Furman, 349 F. Supp.
2d at 557 (quoting Romulus v. United States, 983 F. Supp.
336, 338 (E.D.N.Y.1997), aff'd, 160 F.3d 131 (2d Cir.1998)).
“In the absence of such compliance ... a district court has no
subject matter jurisdiction over the claim.” Hardie, 2020 WL
7485015, at *3 (dismissing FTCA case arising out of collision
with USPS vehicle for lack of subject matter jurisdiction
due to failure to exhaust administrative remedies); see also
Furman, 349 F. Supp. 2d at 559 (same); Tamares, 2009 WL
691002, at *4 (same).
D. Plaintiff Failed to Exhaust His Administrative
Remedies as to the Lost Business Opportunity Claim
In this case, it is clear from the face of plaintiff's SF-95 that
he did not present – and thus did not administratively exhaust
– any claim for lost business opportunity damages, whether
on his own behalf or on behalf of Japanese Juices. Although
the claim form noted that Japanese Juices was the owner of
the Cadillac, Pina clearly identified himself as the claimant.
Moreover, although he specifically requested $400,000 in
damages for bodily injury (describing “neck pain” and a
“pinched nerve” in the “center back”) and another $50,000 for
property damage (describing damage to the “left side of [the]
Cadillac”), he did not so much as hint that he or his company
suffered any broader business harm. Herbst Decl. Ex. 1 at 1.
Plaintiff's claim for $146 million in lost business opportunity
damages, even if otherwise adequately pleaded, is therefore
foreclosed in this Court. See Mayes, 790 F. App'x at 339
(affirming district court's denial of leave to amend to add an
FTCA claim for failure to obtain informed consent because
plaintiff's “initial administrative claim asserted only medical
malpractice and did not include an informed consent claim,”
which “did not satisfy the FTCA's exhaustion requirement”);
Rodriguez v. U.S., 2003 WL 21961121, at *2-4 (S.D.N.Y.
Aug. 14, 2003) (dismissing loss-of-consortium claims by
Rodriguez's spouse for lack of subject matter jurisdiction
where spouse failed to submit any administrative claim to
the USPS, and dismissing Rodriguez's personal injury claims
for failure to include a “sum certain” in his underlying
administrative submissions, and as untimely); Guthrie v. U.S.
Fed. Bureau of Prisons, 2010 WL 2836155, at *4 (S.D.N.Y.
July 7, 2010) (dismissing all of plaintiff's FTCA claims other
than those arising from his alleged permanent loss of hair
while incarcerated at Fort Dix, because his SF 95 “did not list
any injuries besides his hair loss”).
*5 Plaintiff does not deny that he failed to present his lost
business opportunity claim to the USPS. Rather, he argues
that his failure to exhaust should be excused because his
attorney was ineffective and that the government should be
estopped from making the argument because the USPS, acting
through Herbst, engaged in “malicious” and “deceptive”
conduct by “mislead[ing] plaintiff into relinquishing [his]
counsel as a condition of negotiation ... only to immediately
reject [his] claim upon learning of the termination of [his]
counsel.” Pl. Opp. Mem. at 1, 3. Plaintiff presents no evidence
in support of either theory. 7 Even more fundamentally,
the “federal courts have ‘no authority to create equitable
exceptions to jurisdictional requirements.’ ” Davis v. U.S.,
2013 WL 5225931, at *5 (S.D.N.Y. Sept. 1, 2013) (quoting
Bowles v. Russell, 551 U.S. 205, 214 (2007)).
7 Pina's August 22, 2019 email to Hochberg, attached
to his opposition brief, suggests, if anything, that
plaintiff was eager to discharge his attorney. See Pl.
Opp. Mem. Ex. B, at ECF page 13 (“to say that
my experience with you has been frustrating ... is
more than an understatement”; “you've been testing
my patience for quite some [time] now”; “I don't
interfere with your life; please don't interfere with
mine.”). Moreover, Herbst's letter rejecting Pina's
claim was dated August 27, 2019 – fifteen months
after he filed his FS-95 and more than nine months
after Delta told him, on November 8, 2018, “we
are not going to pursue a partnership due to other
priorities for our team.” Compl. Ex. B, at ECF
page 13. In her letter, Herbst noted, among other
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things, that the government had previously offered
a $5,222.37 settlement, which plaintiff rejected. Id.
at ECF pages 6-7.
The Davis plaintiffs (who, like plaintiff Pina, claimed injuries
arising from an automobile accident with a USPS vehicle)
jumped the gun, filing federal lawsuits before they received a
final decision from the USPS on their administrative claims.
Faced with a Rule 12(b)(1) motion to dismiss, they argued that
their failure to exhaust their administrative remedies should
be excused, or that the government should be estopped from
raising the issue, because they received “confusing” letters
from the USPS which “created the distinct impression that the
defendants were directing the claimants to start their lawsuits
and had conferred upon the claimants the eligibility to
commence the lawsuits.” Id. at *5. The court squarely rejected
that argument, explaining that “[t]he Government cannot
be estopped from raising Plaintiffs' failure to exhaust as a
defense in this FTCA case” because, “[i]n the FTCA context,
a plaintiff's failure to exhaust administrative remedies prior
to filing suit deprives the Court of subject-matter jurisdiction
altogether,” thus divesting it of any authority to create an
equitable exception. Id. “Accordingly, a party may not invoke
equitable estoppel to create subject-matter jurisdiction over an
action.” Id.; see also Ins. Corp. of Ireland, Ltd. v. Compagnie
des Bauxites de Guinee, 456 U.S. 694, 702, (1982) (“[N]o
action of the parties can confer subject-matter jurisdiction
upon a federal court.”); Burns v. United States, 764 F.2d 722,
724 (9th Cir. 1985) (“The government may not be equitably
barred from asserting jurisdictional requirements.”); Doe v.
F.D.I.C., 2012 WL 612461, at *4 n.8 (S.D.N.Y. Feb. 27, 2012)
(“[S]ubject matter jurisdiction cannot be created by estoppel
or by the actions of the parties.”).
Similarly, there is no equitable exception to the exhaustion
requirement based on ineffectiveness of counsel. The
constitutional right to the effective assistance of counsel
applies to criminal defendants, not tort plaintiffs. See, e.g.,
Espaillat v. Cont'l Express, Inc., 33 F. App'x 567, 568-69
(2d Cir. 2002) (summary order) (“Ineffective assistance of
counsel is not a proper ground for relief in a civil matter.”).
Even where the bar to suit is non-jurisdictional, such as
a statute of limitations, a claim of attorney malpractice
generally does not excuse noncompliance. “[A]ttorney
neglect is, unfortunately, too common of an occurrence to
toll the statute of limitations.” James v. New York City
Police Dep't, 2019 WL 3451152, at *3 (E.D.N.Y. Mar. 4,
2019) (collecting cases and rejecting plaintiff's claim that
misconduct by his attorney should excuse his late filing
of a civil rights claim); see also Tsatsani v. Walmart,
Inc., 2020 WL 6688939, at *15 (S.D.N.Y. Oct. 26, 2020)
(recommending dismissal of Title VII action as time-barred,
notwithstanding plaintiff's claim that her former attorney
failed to inform her about the statute of limitations), report
and recommendation adopted, 2020 WL 6701019 (S.D.N.Y.
Nov. 13, 2020) Engelmayer, J.). A fortiori, such a claim
cannot confer subject matter jurisdiction on this Court as to
an unexhausted FTCA claim. In any event, as noted above,
plaintiff presents no facts – much less admissible evidence –
supporting his conclusory claim of attorney misconduct.
*6 Finally, plaintiff's claim that he and Japanese Juices
are “one and ... the same,” Pl. Opp. Mem. at 4, misses the
mark, because neither plaintiff nor his company presented
a lost business opportunity claim to the USPS. Thus, even
if Pina (the sole plaintiff here, and the only claimant before
the USPS) had standing to pursue such a claim on behalf of
Japanese Juices, it would be subject to dismissal, pursuant to
Rule 12(b)(1), for lack of subject matter jurisdiction.
III. CONCLUSION
For the foregoing reasons, I recommend, respectfully, that
defendant's motion be GRANTED and that plaintiff's claims
be DISMISSED, without prejudice, to the extent they seek
damages beyond those that plaintiff sought before the agency
for his personal injuries and property damage. The Clerk of
Court is respectfully directed to mail a copy of this Report and
Recommendation to the plaintiff.
NOTICE OF PROCEDURE FOR
FILING OF OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written
objections to this Report and Recommendation pursuant to 28
U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). See also Fed.
R. Civ. P. 6(a) and (d). Any such objections shall be filed
with the Clerk of the Court, addressed to the Hon. Paul A.
Engelmayer. No courtesy copies are required. Any request
for an extension of time to file objections must be directed
to Judge Engelmayer. Failure to file timely objections will
result in a waiver of such objections and will preclude
appellate review. See Thomas v. Arn, 474 U.S. 140, 155
(1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x,
486, 487 (2d Cir. 2018); Wagner & Wagner, LLP v. Atkinson,
Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596
F.3d 84, 92 (2d Cir. 2010).
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All Citations
Not Reported in Fed. Supp., 2021 WL 2019003
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Pina v. United States
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 2:20-CV-01371
Pina v. The United States of America
— S.D.N.Y. Feb. 14, 2020 Docket
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Pina v. United States
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History (15)
Direct History (9)
1. Pina v. United States
2021 WL 2019003 , S.D.N.Y. , Apr. 20, 2021
Report and Recommendation Adopted by
2. Pina v. United States
2021 WL 1947739 , S.D.N.Y. , May 12, 2021
Adhered to by
3. Pina v. United States
2021 WL 2418747 , S.D.N.Y. , June 14, 2021
AND Motion to Vacate Denied by
4. Pina v. United States
2022 WL 17959469 , S.D.N.Y. , Dec. 27, 2022
AND Reconsideration Denied by
5. Pina v. United States
2025 WL 1019718 , S.D.N.Y. , Apr. 04, 2025
6. Pina v. United States
2021 WL 2019003 , S.D.N.Y. , Apr. 20, 2021
Extension of Time Granted by
7. Pina v. United States
2021 WL 2012938 , S.D.N.Y. , May 20, 2021
8. Pina v. United States
2022 WL 18046792 , S.D.N.Y. , Dec. 07, 2022
Report and Recommendation Adopted by
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Pina v. United States
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9. Pina v. United States
2022 WL 17959469 , S.D.N.Y. , Dec. 27, 2022
Related References (6)
10. Japanese Juices LLC v. United States
2020 WL 8679708 , S.D.N.Y. , Mar. 05, 2020
11. Pina v. United States
2021 WL 6841648 , S.D.N.Y. , Dec. 01, 2021
Report and Recommendation Adopted by
12. Pina v. United States
2022 WL 782996 , S.D.N.Y. , Mar. 15, 2022
13. Pina v. United States
2023 WL 2529763 , S.D.N.Y. , Mar. 15, 2023
14. Pina v. United States
2025 WL 2958751 , S.D.N.Y. , Oct. 17, 2025
Appeal Filed by
15. Pina v. The United States of America
, 2nd Cir. , Oct. 21, 2025
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Pina v. United States
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Planck v. Schenectady County, Not Reported in F.Supp.2d (2012)
2012 WL 1977972
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2012 WL 1977972
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Jason S. PLANCK, Plaintiff,
v.
SCHENECTADY COUNTY, et al., Defendants.
No. 1:12–CV–0336(GTS/DRH).
|
June 1, 2012.
Attorneys and Law Firms
Jason S. Planck, of Counsel, Schenectady, NY, pro se.
Goldberg Segalla LLP, Jonathan M. Bernstein, Esq., William
J. Greagan, Esq., of Counsel, Albany, NY, for Defendants.
MEMORANDUM–DECISION and ORDER
GLENN T. SUDDABY, District Judge.
*1 Currently pending before the Court, in this pro se
civil rights action filed by Jason S. Planck (“Plaintiff”)
against Schenectady County and fifteen of its legislators
(“Defendants”), are the following four motions: (1) Plaintiff's
motion for reconsideration of the Court's Decision and Order
of February 29, 2012, denying his motion for a temporary
restraining order (Dkt. No. 10); (2) Plaintiff's motion for
a report from the Court regarding the status of his motion
for reconsideration (Dkt. No. 30); (3) Plaintiff's motion for
a preliminary injunction (Dkt. No. 4); and (4) Defendants'
cross-motion to dismiss Plaintiffs' Complaint (Dkt. No. 17).
For the reasons set forth below, Plaintiffs' three motions are
denied; and Defendants' cross-motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Claims
Generally, when construed with the utmost of special
liberality, Plaintiff's Complaint asserts three civil rights
claims against Defendants-one claim asserting a violation
of Rehabilitation Act of 1973, and two claims asserting
violations of the Americans with Disabilities Act-arising
from Schenectady County's (“the County”) approval of
a project labor agreement (to construct a new nursing
home) that permits the hiring of only unionized construction
workers, thus discriminating against qualified nonunionized
construction workers with disabilities. (See generally Dkt.
No. 1.) Because this Decision and Order is intended primarily
for the review of the parties, and because Defendants (in
their memorandum of law) accurately describe the claims
and factual allegations asserted in Plaintiff's Complaint, the
Court will not describe those claims and factual allegations in
detail in this Decision and Order. Rather, the Court will refer
the reader to pages 1 through 3 of Defendants' memorandum
of law and paragraphs 2 through 4, and 7 through 44,
of Plaintiff's Complaint. (Dkt. No. 17, Attach. 11, at 6–8
[attaching pages “1” through “3” of Defs.' Memo. of Law];
Dkt. No. 1, at ¶¶ 2–4, 7–44.)
B. Briefing on the Parties' Motions
Because the parties have demonstrated in their memoranda of
law an adequate understanding of the legal arguments asserted
in each other's motions, the Court need not, and does not,
describe in detail those arguments in this Decision and Order.
Rather, the Court will simply make two points.
First, generally, in their cross-motion to dismiss, Defendants
assert the following three arguments: (1) Plaintiff's Complaint
should be dismissed under Fed.R.Civ.P. 12(b)(1), because
(a) the Court lacks subject-matter jurisdiction over Plaintiff's
challenge to the County's project labor agreement (which
must be presented by Plaintiff in an Article 78 proceeding
in state court), and (b) Plaintiff, who is not a qualified
construction worker but merely a taxpayer, lacks standing
to challenge the County's approval of the project labor
agreement; (2) in the alternative, Plaintiff's Complaint should
be dismissed for failure to state a claim upon which relief
can be granted under Fed.R.Civ.P. 12(b)(6), because Plaintiff
has failed to allege facts plausibly suggesting the elements
of a claim under either Rehabilitation Act of 1973 or the
Americans with Disabilities Act (particularly the element
requiring that he be a qualified individual with a disability);
and (3) in the alternative, Plaintiff's claims against the
legislative Defendants should be dismissed for failure to state
a claim upon which relief can be granted under Fed.R.Civ.P.
12(b)(6), because, based on Plaintiff's own factual allegations,
those claims are either duplicative of Plaintiff's claims against
the County or barred as a matter of law by the doctrine
of legislative immunity. (Dkt. No. 17, Attach. 11, at 8–22
[attaching pages “3” through “17” of Defs.' Memo. of Law].)
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*2 Second, in this District, when a party files a dispositive
motion (such as a motion for a preliminary injunction), 1 that
party is not entitled to file a surreply. N.D.N.Y. L.R. 7.1(b)(1).
Furthermore, when a party files a nondispositive motion (such
as a motion for reconsideration), that party is not even entitled
to file a reply, without prior leave of the Court. N.D.N.Y. L.R.
7.1(b)(2). Finally, when a party files a cross-motion (such as
a cross-motion to dismiss), that party is not entitled to file
a reply on its cross-motion without prior leave of the Court.
N.D.N.Y. L.R. 7.1(c). Even if it were permitted to file a reply,
that reply may address only the party's own cross-motion,
and not the opponent's original motion; otherwise, the “reply”
would, in part, constitute a surreply. 2 Here, the parties have
violated each of these rules, in addition to violating several
filing deadlines. (Dkt. Nos. 23, 25, 31, 32; see also Text
Notices filed March 9, 2012, and Apr. 2, 2012.) 3 As a result,
the submissions contained in Docket Numbers 23, 25, 31 and
32 will not be considered by the Court. The Court would add
only that, even if it were to consider the submissions, that
consideration would not change the outcome of this Decision
and Order.
1 See Odom v. Senkowski, 96–CV–0554, 1997
WL 458450, at *1 (N . D.N.Y. Aug. 7, 1997)
(Pooler, D.J.) (“Because Odom's request for a
preliminary injunction is a dispositive motion,
the magistrate judge's recommendations require de
novo review.”).
2 See Carlwood Dev. Inc. v. U.S., 10–CV–1773, 2011
WL 69374, at *1 (D.Nev. Jan. 10, 2011) (denying
petitioner's motion to strike government's improper
“cross-motion”—which did not “address[ ] any
matters even remotely indicative of a motion for
summary judgment” but rather merely responded
to the matters raised by the petitioners in their
opening brief-because “rather than striking any
portion of the [‘cross-motion’] itself, the Court
will merely construe [it] as only a response to
the [petitioner's] opening brief, and not a cross-
motion,” and strike the government's unauthorized
reply on its improper cross-motion as “nothing
more than a disingenuous attempt to get the last
word”).
3 The Court notes that, on February 28, 2012,
Plaintiff receive a courtesy copy of the Local Rules
of Practice for this Court. (See Docket Entry dated
Feb. 28, 2012; Dkt. No. 9.)
II. ANALYSIS
A. Motion for Reconsideration
Generally, there are only three grounds upon which a district
court may justifiably reconsider its previous ruling: (1) an
intervening change in controlling law, (2) new evidence, or
(3) a demonstrated need to correct a clear error of law or to
prevent manifest injustice. U.S. v. Sanchez, 35 F.3d 673, 677
(2d Cir.1994), cert. denied, 514, U.S. 1038 (1995).
Here, after carefully considering the matter, Plaintiff's motion
for reconsideration is denied for each of the numerous reasons
offered by Defendants in their memorandum of law: Plaintiff
has not satisfied the above-described standard. (Dkt. No. 17,
Attach. 11, at 15–18 [attaching pages “10” through “13” of
Defs.' Memo. of Law].)
The Court would add two alternative grounds for the denial
of Plaintiff's motion. First, Plaintiff's motion is unsupported
by a memorandum of law that is separate and apart from
an affidavit, in violation of Local Rule 7.1. The Court notes
that an affidavit may not contain legal argument. N.D.N.Y.
L.R. 7.1(a)(2). Second, Plaintiff's motion is moot in that it
seeks an order restraining Defendants from acting between a
discrete time period (i.e., the time of the Court's decision on
Plaintiff's motion a temporary restraining order and the time
of the Court's decision on Plaintiff's motion for a preliminary
injunction), which has, as of the date of this Decision and
Order, already expired.
Finally, the Court notes that Plaintiff's motion for
reconsideration also requested oral argument, and/or an
expedited decision, on Plaintiff's motion for reconsideration.
That request is denied as unsupported by a showing of cause
and/or moot.
B. Motion for a Status Report from the Court
*3 After carefully considering the matter, Plaintiff's motion
for a status report from the Court is denied as unsupported by
a showing of cause and/or moot.
C. Motion for a Preliminary Injunction
Generally, the issuance of a preliminary injunction pursuant
to Fed.R.Civ.P. 65 depends on the movant's demonstration of
(1) irreparable harm and (2) either a likelihood of success on
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the merits, or a sufficiently serious question as to the merits of
the case to make it a fair ground for litigation and a balance of
hardships tipping decidedly in its favor. Tom Doherty Assoc.,
Inc. v. Saban Entm't, Inc., 60 F.3d 27, 33 (2d Cir.1995).
Here, after carefully considering the matter, Plaintiff's
motion for a preliminary injunction is denied for each
of the numerous reasons offered by Defendants in their
memorandum of law: Plaintiff has not satisfied the above-
described standard: on the current record, Plaintiff has not
established either irreparable harm or a likelihood of success
on the merits. (Dkt. No. 17, Attach. 11, at 18–22 [attaching
pages “13” through “17” of Defs.' Memo. of Law] .) Of
particular concern to the Court is this latter deficiency (i.e.,
Plaintiff's failure to show a likelihood of success on the
merits), which is exacerbated by the various substantive
pleading defects in his Complaint. The Court would add
only that, even setting aside these pleading defects, following
the Court's denial of Plaintiff's motion for a temporary
restraining order, Plaintiff did not supplement the record
with the sufficient evidence to warrant a contrary finding.
(Compare Dkt. No. 1 and Dkt. No. 4 with Dkt. No. 10 and
Dkt. No. 22.)
D. Defendants' Cross–Motion to Dismiss
1. Legal Standard Governing Dismissal for Lack of
Subject–Matter Jurisdiction Pursuant to Fed.R.Civ.P.
12(b)(1)
“It is a fundamental precept that federal courts are courts
of limited jurisdiction.” Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 374 (1978). Generally, a claim may
be properly dismissed for lack of subject-matter jurisdiction
where a district court lacks constitutional or statutory power
to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d
Cir.2000). A district court may look to evidence outside
of the pleadings when resolving a motion to dismiss for
lack of subject-matter jurisdiction. Makarova, 201 F.3d at
113. The plaintiff bears the burden of proving subject-matter
jurisdiction by a preponderance of the evidence. Makarova,
201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562
[2d Cir.1996] ). When a court evaluates a motion to dismiss
for lack of subject-matter jurisdiction, all ambiguities must
be resolved and inferences drawn in favor of the plaintiff.
Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635,
638 (2d Cir.2005) (citing Makarova, 201 F .3d at 113).
The Court notes that challenges to a litigant's standing
are properly raised on a motion for lack of subject-matter
jurisdiction. See Alliance for Envtl. Renewal, Inc. v. Pyramid
Crossgates Co., 436 F.3d 82, 88–89 & n. 6 (2d Cir.2006)
(“Although we have noted that standing challenges have
sometimes been brought under Rule 12(b)(6), as well as Rule
12(b)(1), ... the proper procedural route is a motion under
Rule 12(b)(1).”); A.C. v. Mattingly, 05–CV–2986, 2007 WL
894268, at *3 (S.D.N.Y. March 20, 2007) (“The argument of
lack of standing is properly raised under Rule 12(b)(1).”).
2. Legal Standard Governing Dismissal for Failure to
State a Claim Upon Which Relief Can Be Granted,
Pursuant to Fed.R.Civ.P. 12(b)(6)
*4 It has long been understood that a dismissal for failure
to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6), may be
based on either or both of two grounds: (1) a challenge to
the “sufficiency of the pleading” under Fed.R.Civ.P. 8(a)
(2); or (2) a challenge to the legal cognizability of the
claim. Jackson v. Onondaga County, 549 F.Supp.2d 204, 211,
nn. 15–16 (N.D.N.Y.2008) (McAvoy, J., adopting Report–
Recommendation on de novo review) [citations omitted].
With regard to the first ground, Fed.R.Civ.P. 8(a)(2) requires
that a pleading contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2) [emphasis added]. By requiring this
“showing,” Fed.R.Civ.P. 8(a)(2) requires that the pleading
contain a short and plain statement that “give[s] the defendant
fair notice of what the plaintiff's claim is and the grounds upon
which it rests.” Jackson, 549 F.Supp.2d at 212, n. 17 [citations
omitted]. The main purpose of this rule is to “facilitate a
proper decision on the merits.” Id. at 212, n. 18 [citations
omitted]. 4
4 See also Simmons v. Abruzzo, 49 F.3d 83, 86 (2d
Cir.1995) ( “Fair notice is that which will enable the
adverse party to answer and prepare for trial, allow
the application of res judicata, and identify the
nature of the case so it may be assigned the proper
form of trial.”) [citation omitted]; Salahuddin v.
Cuomo, 861 F .2d 40, 42 (2d Cir.1988) (“[T]he
principle function of pleadings under the Federal
Rules is to give the adverse party fair notice of the
claim asserted so as to enable him to answer and
prepare for trial.”) [citations omitted].
The Supreme Court has long characterized this pleading
requirement under Fed.R.Civ.P. 8(a)(2) as “simplified” and
“liberal,” and has repeatedly rejected judicially established
pleading requirements that exceed this liberal requirement. Id.
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at 212, n. 20 [citations omitted]. However, even this liberal
notice pleading standard “has its limits.” Id. at 212, n. 21
[citations omitted]. As a result, numerous Supreme Court and
Second Circuit decisions exist holding that a pleading has
failed to meet this liberal notice pleading standard. Id. at 213,
n. 22 [citations omitted]; see also Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949–52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme
Court reversed an appellate decision holding that a complaint
had stated an actionable antitrust claim under 15 U.S.C. §
1. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007). In
doing so, the Court “retire[d]” the famous statement by the
Court in Conley v. Gibson, 355 U.S. 41, 45–46 (1957), that “a
complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle
him to relief.” Twombly, 127 S.Ct. at 1968–69. Rather than
turning on the conceivability of an actionable claim, the Court
clarified, the “fair notice” standard turns on the plausibility
of an actionable claim. Id. at 1965–74. The Court explained
that, while this does not mean that a pleading need “set out in
detail the facts upon which [the claim is based],” it does mean
that the pleading must contain at least “some factual allegation
[s].” Id . at 1965 [citations omitted]. More specifically, the
“[f]actual allegations must be enough to raise a right to relief
above the speculative level [to a plausible level],” assuming
(of course) that all the allegations in the complaint are true.
Id. [citations omitted]. 5
5 See also Iqbal v. Hasty, 490 F.3d 143, 157–58 (2d
Cir.2007) ( “[The Supreme Court] is not requiring
a universal standard of heightened fact pleading,
but is instead requiring a flexible ‘plausibility
standard,’ which obliges a pleader to amplify
a claim with some factual allegations in those
contexts where such amplification is needed to
render the claim plausible.” ).
*5 As have other Circuits, the Second Circuit has recognized
that the clarified plausibility standard that was articulated by
the Supreme Court in Twombly governs all claims, including
claims brought by pro se litigants (although the plausibility
of those claims is to be assessed generously, in light of
the special solicitude normally afforded pro se litigants). 6
It should be emphasized that Fed.R.Civ.P. 8's plausibility
standard, explained in Twombly, was in no way retracted or
diminished by the Supreme Court's decision (two weeks later)
in Erickson v. Pardus, in which (when reviewing a pro se
pleading) the Court stated, “Specific facts are not necessary”
to successfully state a claim under Fed.R.Civ.P. 8(a)(2).
Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) [citation
omitted; emphasis added]. That statement was merely an
abbreviation of the often-repeated point of law—first offered
in Conley and repeated in Twombly—that a pleading need not
“set out in detail the facts upon which [the claim is based]”
in order to successfully state a claim. Twombly, 127 S.Ct.
1965, n. 3 (citing Conley, 355 U.S. at 47) [emphasis added].
That statement did not mean that all pleadings may achieve
the requirement of “fair notice” without ever alleging any
facts whatsoever. Clearly, there must still be enough fact set
out (however set out, whether in detail or in a generalized
fashion) to raise a right to relief above the speculative level
to a plausible level. 7
6 See, e.g., Jacobs v. Mostow, 271 F. App'x 85, 87
(2d Cir. March 27, 2008) (in pro se action, stating,
“To survive a motion to dismiss, a complaint
must plead ‘enough facts to state a claim to
relief that is plausible on its face.’ ”) [citation
omitted] (summary order, cited in accordance with
Rule 32.1[c][1] of the Local Rules of the Second
Circuit); Boykin v. KeyCorp., 521 F.3d 202, 215–
16 (2d Cir.2008) (finding that borrower's pro se
complaint sufficiently presented a “plausible claim
of disparate treatment,” under Fair Housing Act, to
give lenders fair notice of her discrimination claim
based on lenders' denial of her home equity loan
application) [emphasis added].
7 For example, in Erickson, the Supreme Court
held that, because the plaintiff-prisoner had
alleged that, during the relevant time period,
he suffered from hepatitis C, he had alleged
facts plausibly suggesting that he possessed a
sufficiently serious medical need for purposes of
an Eighth Amendment claim of inadequate medical
care. Erickson, 127 S.Ct. at 2199–2200. Expressed
differently, the Court held that such a plaintiff need
not also allege that he suffered an independent and
“substantial injury” as a result of the termination of
his hepatitis C medication (a requirement that had
been imposed by the district court). This point of
law is hardly a novel one, which is presumably why
the Erickson decision was relatively brief. Prior to
the Supreme Court's decision, numerous decisions,
from district courts within the Second Circuit
alone, had found that suffering from hepatitis
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C constitutes having a serious medical need for
purposes of the Eighth Amendment. See, e.g., Rose
v. Alvees, 01–CV–0648, 2004 WL 2026481, at *6
(W.D.N.Y. Sept. 9, 2004); Verley v. Goord, 02–CV–
1182, 2004 WL 526740, at *10 n. 11 (S.D.N.Y. Jan.
23, 2004); Johnson v. Wright, 234 F.Supp.2d 352,
360 (S.D.N.Y.2002); McKenna v. Wright, 01–CV–
6571, 2002 WL 338375, at *6 (S.D.N.Y. March
4, 2002); Carbonell v. Goord, 99–CV–3208, 2000
WL 760751, at *9 (S.D.N.Y. June 13, 2000). The
important thing is that, in Erickson, even the pro se
plaintiff was required to allege some sort of fact.
In reviewing a complaint for dismissal under Fed.R.Civ.P.
12(b)(6), the court must accept the material facts alleged in
the complaint as true and construe all reasonable inferences
in the plaintiff's favor. This standard is applied with even
greater force where the plaintiff alleges civil rights violations
and/or where the complaint is submitted pro se. However,
while the special leniency afforded to pro se civil rights
litigants somewhat loosens the procedural rules governing the
form of pleadings (as the Second Circuit has observed), 8
it does not completely relieve a pro se plaintiff of the duty
to satisfy the pleading standards set forth in Fed.R.Civ.P. 8,
10 and 12. 9 Rather, as both the Supreme Court and Second
Circuit have repeatedly recognized, the requirements set forth
in Fed.R.Civ.P. 8, 10 and 12 are procedural rules that even
pro se civil rights plaintiffs must follow. 10 Stated more
plainly, when a plaintiff is proceeding pro se, “all normal
rules of pleading are not absolutely suspended.” Jackson, 549
F.Supp.2d at 214, n. 28 [citations omitted].
8 Sealed Plaintif v. Sealed Defendant # 1, No. 06–
1590, 2008 WL 3294864, at *5 (2d Cir. Aug. 12,
2008); see also Traguth v. Zuck, 710 F.2d 90, 95 (2d
Cir.1983).
9 See Prezzi v. Schelter, 469 F.2d 691, 692 (2d
Cir.1972) (extra liberal pleading standard set
forth in Haines v. Kerner, 404 U.S. 519 [1972],
did not save pro se complaint from dismissal
for failing to comply with Fed.R.Civ.P. 8);
accord, Shoemaker v. State of Cal., 101 F.3d
108 (2d Cir.1996) (citing Prezzi v. Schelter, 469
F.2d 691) [unpublished disposition cited only to
acknowledge the continued precedential effect of
Prezzi v. Schelter, 469 F.2d 691, within the Second
Circuit]; accord, Praseuth v. Werbe, 99 F.3d 402
(2d Cir.1995).
10 See McNeil v. U.S., 508 U.S. 106, 113 (1993)
(“While we have insisted that the pleadings
prepared by prisoners who do not have access to
counsel be liberally construed ... we have never
suggested that procedural rules in ordinary civil
litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.”);
Faretta v. California, 422 U.S. 806, 834, n. 46
(1975) (“The right of self-representation is not a
license ... not to comply with relevant rules of
procedural and substantive law.”); Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d
Cir.2006) (pro se status “does not exempt a party
from compliance with relevant rules of procedural
and substantive law”) [citation omitted], accord,
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983);
cf. Phillips v. Girdich, 408 F.3d 124, 128, 130
(2d Cir.2005) (acknowledging that pro se plaintiff's
complaint could be dismissed for failing to comply
with Rules 8 and 10 if his mistakes either
“undermine the purpose of notice pleading [ ]or
prejudice the adverse party”).
Finally, a few words are appropriate regarding what
documents are considered when a dismissal for failure to state
a claim is contemplated. Generally, when contemplating a
dismissal pursuant to Fed.R.Civ.P. 12(b)(6) or Fed.R.Civ.P.
12(c), the following matters outside the four corners of
the complaint may be considered without triggering the
standard governing a motion for summary judgment: (1)
documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint
(and provided by the parties), (3) documents that, although
not incorporated by reference, are “integral” to the complaint,
or (4) any matter of which the court can take judicial notice
for the factual background of the case. 11 Moreover, in the
Second Circuit, a pro se plaintiff's papers in response to a
defendant's motion to dismiss for failure to state a claim may
be considered as effectively amending the allegations of his
complaint-to the extent those papers are consistent with the
allegations in the complaint. 12
11 See Fed.R.Civ.P. 10(c) (“A copy of any written
instrument which is an exhibit to a pleading is
a part thereof for all purposes.”); L–7 Designs,
Inc. v. Old Navy, LLC, No. 10–573, 2011 WL
2135734, at *1 (2d Cir. June 1, 2011) (explaining
that conversion from a motion to dismiss for
failure to state a claim to a motion for summary
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judgment is not necessary under Fed.R.Civ.P. 12[d]
if the “matters outside the pleadings” in consist
of [1] documents attached to the complaint or
answer, [2] documents incorporated by reference
in the complaint (and provided by the parties),
[3] documents that, although not incorporated by
reference, are “integral” to the complaint, or [4]
any matter of which the court can take judicial
notice for the factual background of the case);
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104,
111 (2d Cir.2010) (explaining that a district court
considering a dismissal pursuant to Fed. R. Civ.
12(b)(6) “may consider the facts alleged in the
complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference
in the complaint.... Where a document is not
incorporated by reference, the court may neverless
consider it where the complaint relies heavily
upon its terms and effect, thereby rendering the
document ‘integral’ to the complaint.... However,
even if a document is ‘integral’ to the complaint,
it must be clear on the record that no dispute
exists regarding the authenticity or accuracy of the
document. It must also be clear that there exist
no material disputed issues of fact regarding the
relevance of the document.”) [internal quotation
marks and citations omitted]; Chambers v. Time
Warner, Inc., 282 F.3d 147, 152 (2d Cir.2009)
(“The complaint is deemed to include any written
instrument attached to it as an exhibit or any
statements or documents incorporated in it by
reference.”) (internal quotation marks and citations
omitted); Int'l Audiotext Network, Inc. v. Am. Tel. &
Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (per curiam)
(“[W]hen a plaintiff chooses not to attach to the
complaint or incorporate by reference a [document]
upon which it solely relies and which is integral
to the complaint,” the court may nevertheless take
the document into consideration in deciding [a]
defendant's motion to dismiss, without converting
the proceeding to one for summary judgment.”)
(internal quotation marks and citation omitted).
12 See Drake v. Delta Air Lines, Inc., 147 F.3d
169, 170 n. 1 (2d Cir.1998) (per curiam) (“[W]e
deem Drake's complaint to include the facts
contained in his memorandum of law filed in
response to Delta's 1996 motion to dismiss.”);
Gill v. Mooney, 824 F.2d 192, 195 (2d Cir.1987)
( “In his affidavit submitted in opposition to
defendants' motion to dismiss, Gill asserts that
Mooney's actions amounted to deliberate and
willful indifference. Liberally construed under pro
se pleading standards, Gill's allegations against
Mooney involve more than ordinary lack of due
care for the prisoner's interests or safety, ... and
therefore state a colorable claim under the Eighth
and Fourteenth Amendments.”) (internal quotation
marks and citation omitted); Donhauser v. Goord,
314 F.Supp.2d 119, 212 (N.D.N.Y.) (Sharpe, M.J.)
(“[I]n cases where a pro se plaintiff is faced with
a motion to dismiss, it is appropriate for the court
to consider materials outside of the complaint to
the extent they “are consistent with the allegations
in the complaint.”) (collecting district court cases),
vacated on other grounds, 317 F.Supp.2d 160
(N.D.N.Y.2004) (Hurd, J.).
3. Analysis
*6 After carefully considering the matter, and applying
the above-described legal standard, Plaintiff's motion for
a preliminary injunction is denied for each of the
three alternative reasons offered by Defendants in their
memorandum of law. See, supra, Part I.B. of this Decision
and Order (summarizing those reasons).
The Court would add only two points. First, although Plaintiff
attaches 97 pages of exhibits in his opposition to Defendants'
motion to dismiss for failure to state a claim, and a 23–
page memorandum of law, the Court either (1) does not
construe the allegations in those documents as consistent
with the allegations in Plaintiff's Complaint or (2) finds the
allegations in those documents to be insufficient to rescue
the pleading defects contained in Plaintiff's claims. Second,
although Plaintiff appears to now largely hinge his claims on
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), and/or
Fed.R.Civ.P. 23, the Court finds that reliance to be misplaced.
(Dkt. No. 22, Attach. 1, at 4–8 .)
4. Whether Dismissal Should Be With or Without
Prejudice
Generally, when a district court dismisses a pro se action sua
sponte, the plaintiff will be allowed to amend his action. See
Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d
Cir.1999). However, an opportunity to amend is not required
where the plaintiff has already been afforded the opportunity
to amend. 13
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13 Shuler v. Brown, 07–CV–0937, 2009 WL 790973,
at *5 & n. 25 (N.D.N.Y. March 23, 2009) (McAvoy,
J., adopting Report–Recommendation by Lowe,
M.J.) (“Of course, an opportunity to amend is not
required where the plaintiff has already amended
his complaint.”), accord, Smith v. Fischer, 07–
CV–1264, 2009 WL 632890, at *5 & n. 20
(N.D.N.Y. March 9, 2009) (Hurd, J., adopting
Report–Recommendation by Lowe, M.J.); Abascal
v. Hilton, 04–CV–1401, 2008 WL 268366, at *8
(N.D.N.Y. Jan. 130 2008) (Kahn, J., adopting, on de
novo review, Report–Recommendation by Lowe,
M.J.); see also Yang v. New York City Trans. Auth.,
01–CV–3933, 2002 WL 31399119, at *2 (E.D.N.Y.
Oct. 24, 2002) (denying leave to amend where
plaintiff had already amended complaint once);
Advanced Marine Tech. v. Burnham Sec., Inc., 16
F.Supp.2d 375, 384 (S.D.N.Y.1998) (denying leave
to amend where plaintiff had already amended
complaint once); cf. Foman v. Davis, 371 U.S. 178,
182 (1962) (denial of leave to amend not abuse
of discretion movant has repeatedly failed to cure
deficiencies in pleading).
Moreover, an opportunity to amend is not required where the
defects in the plaintiff's claims are substantive rather than
merely formal, such that any amendment would be futile.
As the Second Circuit has explained, “[w]here it appears
that granting leave to amend is unlikely to be productive, ...
it is not an abuse of discretion to deny leave to amend.”
Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d
Cir.1993) (citations omitted). 14 This rule applies even to pro
se plaintiffs. See, e.g., Cuoco, 222 F.3d at 103; Brown, 1997
WL 599355 at * 1.
14 Accord, Brown v. Peters, 95–CV–1641, 1997 WL
599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler,
J.) (“[T]he court need not grant leave to amend
where it appears that amendment would prove to be
unproductive or futile.”) (citation omitted); see also
Foman v. Davis, 371 U.S. 178, 182 (1962) (denial
not abuse of discretion where amendment would be
futile); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir.2000) (“The problem with Cuoco's causes of
action is substantive; better pleading will not cure
it. Repleading would thus be futile. Such a futile
request to replead should be denied.”) (citation
omitted); Cortec Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 48 (2d Cir.1991) (“Of course, where
a plaintiff is unable to allege any fact sufficient to
support its claim, a complaint should be dismissed
with prejudice.”) (citation omitted); Health–Chem
Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.1990)
( “[W]here ... there is no merit in the proposed
amendments, leave to amend should be denied”).
Here, the Court finds that the pleading deficiency in Plaintiff's
claims are substantive and not merely formal. As an
initial matter, lack of subject-matter jurisdiction is generally
viewed as a substantive defect. 15 Even if the Court did
possess subject-matter jurisdiction over Plaintiff's claims,
the pleading defects in those detailed claims still appear
substantive. For example, it does not appear to the Court
that granting Plaintiff leave to amend his claims would likely
be productive. Setting aside the fact that he has failed to
correct those defects despite having had months in which to
do so, the fact remains that he appears to insist on asserting
nonactionable claims, rendering any amendment futile. (See
generally Dkt. No. 22, Attach. 1.) As a result, the Court
declines to afford Plaintiff an opportunity to amend his
Complaint prior to dismissal.
15 See U.S. ex rel. Phipps v. Comprehensive
Comty. Dev. Corp., 152 F.Supp.2d 443, 455
(S.D.N.Y.2001) (“[I]t is not appropriate to grant
Phipps's request [for leave to amend the Complaint]
because the Court has determined that it does
not have subject matter jurisdiction over this
action.”); Chan v. Reno, 916 F.Supp. 1289, 1302
(S.D.N.Y.1996) (“An amendment is considered
futile if the amended pleading fails to state
a claim or would be subject to a successful
motion to dismiss on some other basis. As
will be discussed herein, [the proposed amended
complaint] ... presents a non-justiciable claim and
fails to present this Court with subject matter
jurisdiction. Therefore, because [the proposed
amended complaint] would be subject to a
successful motion to dismiss ..., amendment would
be futile.”).
However, because Defendants argued persuasively that
Plaintiff should have presented his challenge to the County's
project labor agreement in an Article 78 proceeding in
state court, the Court dismisses Plaintiff's claims against the
County without prejudice to refiling in state court within
thirty (30) days of this Decision and Order. 16
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 75 of 90

Planck v. Schenectady County, Not Reported in F.Supp.2d (2012)
2012 WL 1977972
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 8
16 The Court notes that, in addition, it expresses no
opinion as to the merits of any claim, arising in the
future, that Plaintiff may or may not bring pursuant
to Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581
(1999).
*7 ACCORDINGLY, it is
ORDERED that Plaintiff's motion for reconsideration of the
Court's Decision and Order of February 29, 2012, denying
his motion for a temporary restraining order (Dkt. No. 10) is
DENIED; and it is further
ORDERED that Plaintiff's motion for a report from the Court
regarding the status of his motion for reconsideration (Dkt.
No. 30) is DENIED; and it is further
ORDERED that Plaintiff's motion for a preliminary
injunction (Dkt. No. 4) is DENIED; and it is further
ORDERED that Defendants' cross-motion to dismiss
Plaintiffs' Complaint (Dkt. No. 17) is GRANTED; and it is
further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED with prejudice EXCEPT for his claims
against Schenectady County, which are DISMISSED
without prejudice to refiling in state court within THIRTY
(30) DAYS of this Decision and Order.
The Court hereby certifies, for purposes of 28 U.S.C. §
1915(a) (3), that any appeal taken from this Decision and
Order would not be taken in good faith.
All Citations
Not Reported in F.Supp.2d, 2012 WL 1977972
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 76 of 90

Planck v. Schenectady County
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:12cv00336
PLANCK v. SCHENECTADY COUNTY ET AL
— N.D.N.Y. Feb. 27, 2012 Docket
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 77 of 90

Planck v. Schenectady County
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (1)
Direct History (1)
1. Planck v. Schenectady County
2012 WL 1977972 , N.D.N.Y. , June 01, 2012 , appeal dismissed (2nd Circ. 12-2594) ( Aug 07, 2012 )
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 78 of 90

| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2026 LexisNexis
Chaim Jaffe
User Name: Chaim Jaffe
Date and Time: Wednesday, February 4, 2026 11:38￿AM EST
Job Number: 274773623
Document (1)
1. Tavares v. New York City Health & Hosps. Corp., 2015 U.S. Dist. LEXIS 3815
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Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 79 of 90

Chaim Jaffe
Positive
As of: February 4, 2026 4:38 PM Z
Tavares v. New York City Health & Hosps. Corp.
United States District Court for the Southern District of New York
January 13, 2015, Decided; January 13, 2015, Filed
13-cv-3148 (PKC)(MHD)
Reporter
2015 U.S. Dist. LEXIS 3815 *
PEDRO TAVARES, Plaintiff, -against- NEW
YORK CITY HEALTH AND HOSPITALS
CORP., LYNDA D. CURTIS, MICHAEL
DEUTSCH, BARTOSZ GROBELNY,
LAWRENCE MIETELES, NELSON MUTHRA,
MARYANN GENOVESE, and MARK SCOTT,
Defendants.
Subsequent History: Summary judgment granted
by Tavares v. N.Y.C. Belleview Hosp., 2015 U.S.
Dist. LEXIS 160350 (S.D.N.Y., Nov. 30, 2015)
Counsel: [*1] Pedro Tavares, Plaintiff, Pro se,
Woodbourne, NY.
For N.Y.C. Belleview Hospital, Senior V.P. Lynda
D. Curtis, Mark Scott, Deputy-Warden-
Commander, Michael Deutsch, B.H. Dr., Bartosz
Grobelny, B.H. Doctor, Defendants: Omar Hani
Tuffaha, LEAD ATTORNEY, New York City Law
Department, New York, NY.
For Lawrence Mieteles, Otolaryngology, Nelson
Muthra, Medical Provider, Maryann Genovese,
Medical Director, Defendants: Jeb Harben, LEAD
ATTORNEY, Office of the Attorney General, New
York State, New York, NY.
Judges: P. Kevin Castel, United States District
Judge.
Opinion by: P. Kevin Castel
Opinion
MEMORANDUMAND ORDER
CASTEL, U.S.D.J.
Plaintiff Pedro Tavares, proceeding pro se, brings
this action against the New York City Health and
Hospitals Corporation ("HHC"),1 Lynda D. Curtis,
Michael Deutsch, Bartosz Grobelny, and Mark
Scott (collectively with HHC, the "City
Defendants"); and Lawrence Mieteles, Nelson
Muthra and Maryann Genovese, all three
employees of the New York State Department of
Corrections and Community Supervision
("DOCCS") (collectively, the "DOCCS
Defendants"). He asserts causes of action under 42
U.S.C. § 1983 and state law, alleging that he was
provided inadequate medical care which caused
him to develop a hearing impairment, and [*2] that
the defendants falsified medical records in order to
cover up the real cause of his impairment.
The City Defendants and the DOCCS Defendants
have moved separately to dismiss the complaint
pursuant to Rule 12(b)(6), Fed. R. Civ. P. For the
following reasons, the City Defendants' motion is
denied with respect to defendant Deutsch, but
granted with respect to the other City Defendants.
The DOCCS Defendants' motions are granted in
their entirety.
1 HHC is sued herein as "N.Y.C. Belleview [sic] Hospital." Bellevue
Hospital is a facility owned and operated by HHC, however, and is
not an independently suable entity. See Nogbou v. Mayrose, No. 07
Civ. 3763, 2009 U.S. Dist. LEXIS 96118, 2009 WL 3334805, at *7
(Oct. 15, 2009), aff'd, 400 F. App'x 617 (2d Cir. 2010). By statute,
HHC has the capacity to be sued. N.Y. Unconsol. Laws § 7385(1).
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 80 of 90

Page 2 of 11
BACKGROUND
The following facts are taken from Tavares's
amended complaint (Dkt. No. 36) unless otherwise
noted, and are accepted as true for the purposes of
this motion.2 On March 10, 2011, Tavares, who
was then incarcerated at the George R. Vierno
Center ("GRVC"), a facility operated by the New
York City Department of Corrections ("DOC"),
was discharged from Bellevue Hospital after
receiving surgery for carpal tunnel syndrome on his
left hand. (Am. Compl. ¶¶ 5, 6.) He was discharged
mere hours after the surgery,3 and the doctor [*3]
who did so, defendant Michael Deutsch, failed to
direct corrections officers to refrain from
handcuffing him. (Id. ¶ 6.) He also failed to protect
the wound with "some type of gasket" to prevent
infection. (Opp'n to City Defs.' Mot. 10; see also id.
at 2 (stating that "the surgery was [sic] been left
open").) As a result, his hand became infected "all
2 In opposition to the DOCCS Defendants' motion to dismiss,
Tavares has submitted an affidavit (Dkt. No. 68, "Pl.'s Aff.") to
which are attached as exhibits medical records documenting the care
he received from Bellevue Hospital and from DOCCS. The DOCCS
medical records were also attached to Tavares's original complaint
(Dkt. No. 2). Tavares also previously submitted [*4] the Bellevue
records as attachments to a "notice of motion" filed in response to an
early motion to dismiss by the City Defendants that was
subsequently withdrawn (Dkt. No. 58).
Although generally a court may not look outside the pleadings when
reviewing a Rule 12(b)(6) motion to dismiss, new factual allegations
in a pro se plaintiff's opposition papers may be read as
supplementing the allegations in the complaint, at least when they
are consistent with them. See, e.g., Vail v. City of N.Y., F. Supp. 3d
, 2014 U.S. Dist. LEXIS 166925, No. 12-cv-5125(KMK), 2014 WL
6772264, at *12 (S.D.N.Y. Dec. 2, 2014); Chukwueze v. NYCERS,
891 F. Supp. 2d 443, 448 (S.D.N.Y. 2012); Donahue v. U.S. Dep't of
Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990). Accordingly, the Court
will consider these medical records as though they were exhibits to
the amended complaint. It will also consider new allegations
consistent with the complaint that are contained in Tavares's
opposition papers.
3 The Bellevue medical records indicate instead that Tavares was
discharged the morning following his surgery. (See Pl.'s Aff. Ex. 1.)
Tavares claims that this is inaccurate, and that he was in fact
discharged on the day of his surgery between 4 and 7 p.m. (Dkt. No.
58, at 3.) The time discrepancy is not material to the resolution of
these motions.
the way up to elbow [sic], or further up to the arm"
(Am. Compl. ¶ 6), and Tavares was readmitted to
Bellevue on March 17. (Id. ¶ 7.) He stayed there
until March 22, and was administered a course of
antibiotics, which was necessary to avoid the
amputation of his hand. (Id.) Tavares alleges that
the doctor who administered the antibiotics,
defendant Bartosz Grobelny, did not take any
precautionary measures and failed to take into
account Tavares's age and other medical conditions.
(Id.)
During his stay at Bellevue, Tavares began to
notice that he was losing his hearing. (Id. ¶ 8.) He
informed the hospital staff, which ordered [*5] a
hearing test. (Id.) He was discharged without being
told his test results. (Id.) Tavares was then
transferred out of DOC custody, to DOCCS's
Downstate Correctional Facility. (Id. ¶ 9.) On July
7, he underwent an audiology test, which
determined that he suffered from High Tone
Hearing Impairment in both ears. (Id. ¶¶ 9, 10; Pl.'s
Aff. Ex. 4 (Dkt. No. 68).). On July 15, Tavares saw
defendant Dr. Lawrence Mieteles, an
otolaryngology specialist, who noted that Tavares's
hearing loss might be linked to noise exposure,
since Tavares used to work in construction. (Am.
Compl. ¶ 10; Pl.'s Aff. Ex. 5.). Tavares claims,
however, that he never told Mieteles about his work
in construction, and furthermore that he never
worked with noisy machinery. (Am. Compl. ¶ 10.)
He alleges that his hearing loss was in fact caused
by "the excessive amount of antibiotic [sic] ordered
by Defendant Dr. Bartosz Grobelny" (id. ¶ 9), and
that Mieteles was attempting to "cover-up" the City
Defendants' negligence in giving him these
antibiotics. (Id. ¶ 10.) He further alleges that the
other DOCCS Defendants, Dr. Nelson Muthra and
Dr. Maryann Genovese, were "co-conspirator[s]"
with Mieteles (Id. ¶ 11), because his medical
records [*6] contain a written statement by Muthra
that noise exposure caused Tavares's hearing loss
(Pl.'s Aff. ¶ 8; Pl.'s Aff. Ex. 6), and Genovese
"endorsed" that statement. (Pl.'s Aff. ¶ 9.)
Tavares filed this action on May 3, 2013 (Dkt. No.
2015 U.S. Dist. LEXIS 3815, *2
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 81 of 90

Page 3 of 11
2), and filed the amended complaint on January 10,
2014. The City Defendants moved to dismiss on
May 29. (Dkt. No. 55.) Mieteles and Muthra moved
to dismiss on June 26 (Dkt. No. 60), and Genovese
moved separately on September 10. (Dkt. No. 74.)
As of December 3, all three motions were fully
briefed.
LEGAL STANDARD
"To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true,
to 'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell
Atlantic v. Twombly, 550 U.S. 544, 570, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007)). "A claim has
facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the
misconduct alleged." Id. "The plausibility standard
. . . asks for more than a sheer possibility that a
defendant has acted unlawfully." Id. In assessing
the complaint, the district court must draw all
reasonable inferences in favor of the non-movant.
In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d
Cir. 2007). Legal conclusions and "[t]hreadbare
recitals of the elements of a cause [*7] of action,"
however, are not entitled to any presumption of
truth. Iqbal, 556 U.S. at 678.
Courts have a duty to construe a complaint filed by
a pro se plaintiff liberally, conducting their
examination with "special solicitude [and]
interpreting the complaint to raise the strongest
claims that it suggests." Hill v. Curcione, 657 F.3d
116, 122 (2d Cir. 2011).
DISCUSSION
I. Section 1983 Claims
A. Claims against the City Defendants
1. Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act of 1995
("PLRA") provides that "[n]o action shall be
brought with respect to prison conditions under
[section 1983], 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). This exhaustion requirement "applies to
all inmate suits about prison life, whether they
involve general circumstances or particular
episodes, and whether they allege excessive force
or some other wrong." Porter v. Nussle, 534 U.S.
516, 532, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002).
Furthermore, "[s]ection 1997e(a) requires 'proper
exhaustion'—that is, 'using all steps that the agency
holds out, and doing so properly.'" Amador v.
Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (quoting
Woodford v. Ngo, 548 U.S. 81, 90, 126 S. Ct. 2378,
165 L. Ed. 2d 368 (2006)).
In Hemphill v. New York, 380 F.3d 680 (2d Cir.
2004), however, the Second Circuit held that failure
to exhaust administrative remedies may sometimes
be excused.4 This is the case: (1) if the
administrative remedies [*8] were not in fact
available to the prisoner; (2) if the defendants are
estopped from raising non-exhaustion as an
affirmative defense, because they failed to raise or
preserve it, or because of their own actions
inhibiting the inmate's exhaustion of remedies; or
(3) if other "special circumstances" have been
plausibly alleged that justify the prisoner's failure to
exhaust. Id. at 686. One such "special
circumstance" is when an inmate is transferred a
short time after the grievable incident occurs to a
correctional facility governed by a different
governmental jurisdiction and a different grievance
procedure. Hartry v. Cnty. of Suffolk, 755 F. Supp.
2d 422, 433-34 (E.D.N.Y. 2010) (collecting cases).
4 The Second Circuit has since noted that Hemphill is in tension with
Woodford's later holding that the PLRA requires "proper
exhaustion." See Amador, 655 F.3d at 102. In the absence of any
clear indication that Hemphill has been overruled, however, this
Court will continue to treat it as good law. McClinton v. Connolly,
No. 13-CV-2375(KMW)(DCF), 2014 U.S. Dist. LEXIS 143450, 2014
WL 5020593, at *2 n.4 (S.D.N.Y. Oct. 8, 2014); Smith v. City of N.Y.,
No. 12 Civ. 3303(CM), 2013 U.S. Dist. LEXIS 144122, 2013 WL
5434144, at *9 (S.D.N.Y. Sept. 26, 2013).
2015 U.S. Dist. LEXIS 3815, *6
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 82 of 90

Page 4 of 11
DOC provides a multi-step Inmate Grievance
Resolution Program ("IGRP"), and the failure to
make use of the IGRP constitutes failure to exhaust
under the PLRA.5 See, e.g., Seabrook v. City of
N.Y., No. 13-CV-6620(JPO), 2014 U.S. Dist. LEXIS
174207, 2014 WL 7176052, at *3 (S.D.N.Y. Dec.
16, 2014). Claims of deliberate indifference to
medical needs, such as those Tavares brings
here, [*9] are covered by the IGRP. See, e.g.,
Harris v. Bowden, No. 03 Civ. 1617(LAP), 2006
U.S. Dist. LEXIS 12450, 2006 WL 738110, at *3
(S.D.N.Y. Mar. 23, 2006). Tavares concedes that he
never filed a grievance in connection with the
violations he alleges against the City Defendants.
(Am. Compl. ¶ 20). He argues, however, that his
failure to exhaust should be excused, because he
was transferred out of DOC custody shortly after
his claims against the City Defendants arose, and
because he was misinformed about the scope of the
IGRP.
First, Tavares alleges that he was transferred to a
DOCCS facility on March 27, 2011, a mere five
(according to the complaint) or six (according to
the medical records submitted by Tavares) days
after his second discharge from Bellevue, and
argues that this should excuse his failure to exhaust.
The City Defendants, however, dispute this version
of events, claiming that Tavares did not leave DOC
custody until June 17, 2011. [*10] They urge the
Court to verify this through DOC's online inmate
tracking system, and to take judicial notice of the
information obtained therefrom. While a court
deciding a motion to dismiss must generally accept
the complaint's factual allegations as true, it is
permitted to reject the truthfulness of those
allegations when they are contradicted by matters
of which judicial notice may be taken, such as
5 The Court takes judicial notice of the IGRP, as courts in this district
have regularly done. See Myers v. City of N.Y., 11 Civ. 8525(PAE),
2012 U.S. Dist. LEXIS 123994, 2012 WL 3776707, at *4 n.6
(S.D.N.Y. Aug. 29, 2012) (collecting cases). The version of the IGRP
that was in effect in 2011 is available of the DOC's website. See
N.Y. City Dep't of Correction, Directive 3375R-A (effective from
Mar. 13, 2008 to Sept. 10, 2012), available at
http://www.nyc.gov/html/doc/downloads/pdf/3375R-A.pdf.
matters of public record. Fowlkes v. Rodriguez, 584
F. Supp. 2d 561, 574 (E.D.N.Y. 2008); see also
Davison v. Ventrus Biosciences, Inc., No. 13 Civ.
3119(RMB), 2014 U.S. Dist. LEXIS 63038, 2014
WL 1805242, at *10 (S.D.N.Y. May 5, 2014)
(rejecting allegations contradicted by public SEC
filings); Makowski v. United Bhd. of Carpenters &
Joiners of Am., No. 08 Civ. 6150(PAC), 2010 U.S.
Dist. LEXIS 77775, 2010 WL 3026510, at *2 n.4
(S.D.N.Y. Aug. 2, 2010) (rejecting allegations
contradicted by the docket in another action).
Courts in this district have taken judicial notice of
information obtained from online inmate tracking
services. See, e.g., Tribble v. City of N.Y., No. 10
Civ. 8697(JMF), 2013 U.S. Dist. LEXIS 2954, 2013
WL 69229, at *1 n.1 (S.D.N.Y. Jan. 3, 2013);
Williams v. City of N.Y., No. 07 Civ. 3764(RJS),
2008 U.S. Dist. LEXIS 59932, 2008 WL 3247813,
at *2 (S.D.N.Y. Aug. 7, 2008) (using DOCCS's
tracking service).
Although the Court was unable to find Tavares on
the DOC's website— presumably because he is no
longer in DOC custody—a search of DOCCS's
online inmate lookup service confirms that Tavares
did not enter DOCCS custody until June 17, 2011.6
In his opposition papers, Tavares does not respond
to the City Defendants' argument and does not
attempt to defend his original timeline, for instance
by alleging that there was a gap between his time in
DOC custody and his time [*11] in DOCCS
custody. In light of this, the Court is constrained to
reject Tavares's claim that he was transferred on
March 27.7 Although a transfer five or six days
after the grievable incident might constitute a
"special circumstance" excusing exhaustion, a
transfer nearly three months later does not. See
6 The service is available at http://nysdoccslookup.doccs.ny.gov.
7 The City Defendants' account is bolstered by Tavares's own pre-
motion letter to the Court, dated Feb. 11, 2014, in which he explains
that during the three-month period before June 17, he made many
trips to Bellevue and Elmhurst Hospitals (both facilities operated by
HHC), was resentenced in court, and attended physical therapy.
(Dkt. No. 39, at 2.) He claims that these comings and goings can be
corroborated by DOC, rather than DOCCS, records.
2015 U.S. Dist. LEXIS 3815, *8
Case 5:26-cv-00152-BKS-MJK Document 11 Filed 02/04/26 Page 83 of 90

Page 5 of 11
Burns v. Moore, No. 99-CV-0966(LMM)(THK),
2002 U.S. Dist. LEXIS 1036, 2002 WL 91607
(S.D.N.Y. Jan. 24, 2002) (holding that the plaintiff's
transfer two months after his claim arose did not
excuse his failure to exhaust); Miles v. Cnty. of
Broome, No. 3:04-CV-1147, 2006 U.S. Dist. LEXIS
15482, 2006 WL 561247 (N.D.N.Y. Mar. 6, 2006)
(holding that exhaustion was not excused where the
plaintiff was transferred sixteen, seventeen or
eighteen days after the subject of his "primary
gripes" occurred).
Tavares next claims, in his memorandum in
opposition to the City Defendants' [*12] motion,
that the grievance coordinator at GRVC and the law
library officer at the Bellevue Hospital Ward both
told him that they did not accept grievances on
medical issues. The City Defendants characterize
this as an estoppel argument, under Hemphill's
second prong, and argue that it is applicable only
against a defendant whose own actions inhibited
the plaintiff from exhausting. See Hemphill, 380
F.3d at 689 (suggesting that, "depending on the
facts pertaining to each defendant, it is possible that
some individual defendants may be estopped, while
others may not be"). Because neither the grievance
coordinator nor the law library officer is a
defendant in this action, the defendants argue that
estoppel does not apply.
But even if estoppel does not apply, the allegation
that officials misinformed the plaintiff about the
grievance procedure "may be relevant to an
analysis of excuse on grounds other than estoppel."
Smith v. City of N.Y., No. 12 Civ. 3303(CM), 2013
U.S. Dist. LEXIS 144122, 2013 WL 5434144, at
*11 (S.D.N.Y. Sept. 26, 2013). Specifically, "[a]n
administrative remedy is not available, and
therefore need not be exhausted, if prison officials
erroneously inform an inmate that the remedy does
not exist or inaccurately describe the steps he needs
to take to pursue it." 2013 U.S. Dist. LEXIS
144122, [WL] at *16 (quoting Medina v. Nassau
Cnty. Sherriff Dep't, No. 11 Civ. 228 (JFB)(GRB),
2013 U.S. Dist. LEXIS 129114, 2013 WL 4832803,
at *6 (E.D.N.Y. Sept. 10, 2013)); [*13] see also
Burgess v. Garvin, No. 01 Civ. 10994(GEL), 2004
U.S. Dist. LEXIS 4122, 2004 WL 527053, at *3
(S.D.N.Y. Mar. 16, 2004) ("remedies are not
available where prisoners are not informed of their
existence"). In Smith, one plaintiff "was told that
the grievance process was not available to him for
this particular prison condition." Smith, 2013 U.S.
Dist. LEXIS 144122, 2013 WL 5434144, at *14.
The court concluded that remedies could not be
deemed to be "available" to that plaintiff, and also
that this might constitute a "special circumstance"
excusing exhaustion. 2013 U.S. Dist. LEXIS
144122, [WL] at *17. Just as in Smith, Tavares was
allegedly told that the IGRP would not address his
grievances because they pertained to medical
issues. If proven, this would excuse Tavares's
failure to exhaust remedies under the IGRP, under
either the first or the third Hemphill prong. While
Tavares provides little relevant factual detail, he
does identify the officials who allegedly
misinformed him; taking into account Tavares's pro
se status, this is sufficient at the motion to dismiss
stage. Accordingly, the Court concludes that
Tavares's failure to exhaust remedies under the
IGRP is excused, although the City Defendants will
be at liberty to raise the issue at the summary
judgment stage.
2. Failure to State a Claim
A plaintiff suing under section 1983 must show that
the defendants [*14] "deprived him of a right
secured by the Constitution or laws of the United
States." Palmieri v. Lynch, 392 F.3d 73, 78 (2d Cir.
2004). In Estelle v. Gamble, 429 U.S. 97, 104-05,
97 S. Ct. 285, 50 L. Ed. 2d 251 (1976), the Supreme
Court recognized that deliberate indifference to a
prisoner's serious medical needs violates the Eighth
Amendment's prohibition against cruel and unusual
punishment. This is the type of violation that
underlies Tavares's section 1983 claims against the
City Defendants. To prevail on these claims,
Tavares must prove an objective element and a
subjective element. The objective element relates to
the alleged deprivation suffered: Tavares must
show that he "was actually deprived of adequate
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Page 6 of 11
medical care," and that "the inadequacy in medical
care [was] sufficiently serious." Salahuddin v.
Goord, 467 F.3d 263, 279-80 (2d Cir. 2006). The
subjective element relates to the City Defendants'
state of mind: Tavares must show that they "acted
with deliberate indifference to inmate health," i.e.,
that they "act[ed] or fail[ed] to act while actually
aware of a substantial risk that serious inmate harm
[would] result." Id. at 280. This standard is
demanding—"the equivalent of criminal
recklessness." Hathaway v. Coughlin, 99 F.3d 550,
553 (2d Cir. 1996).
With the exception of Deutsch, Tavares's section
1983 claims against the City Defendants fail
because he has not adequately pleaded the
subjective element against them. As an initial
matter, Tavares does not allege that [*15] the City
Defendants ignored his carpal tunnel syndrome or
inordinately delayed treating it, nor does he allege
that they lacked diligence in attending to his
subsequent infection. Indeed, both the carpal tunnel
syndrome and the infection were successfully
treated. Tavares's medical records show that he
returned to Bellevue for a follow-up visit on June 8,
2011. (Pl.'s Aff. Ex. 3.) In a letter to the Court
dated February 11, 2014, Tavares also claims that
between March and June 2011, he went "back and
forht [sic] to Belleview [sic] Hospital and to
Elmshurst [sic] Hospital," and also attended
physical therapy three times per week. (Dkt. No.
39, at 2.) Rather than evincing deliberate
indifference, this shows that Tavares received a
sustained level of medical attention. See
Washington v. City of N.Y., No. 10 Civ.
389(LTS)(JLC), 2011 U.S. Dist. LEXIS 15257,
2011 WL 566801, at *2 (S.D.N.Y. Feb. 15, 2011)
(finding no deliberate indifference where the
plaintiff was treated several times by doctors and
was given painkillers); Colon v. City of N.Y., No. 08
Civ. 3142(HB), 2009 U.S. Dist. LEXIS 43746, 2009
WL 1424169, at *8 (S.D.N.Y. May 21, 2009)
(finding no deliberate indifference where the
plaintiff received significant medical attention for
several months following his injury); Brown v.
Selwin, 250 F. Supp. 2d 299, 308 (S.D.N.Y. 1999)
(finding no deliberate indifference where the
plaintiff was treated on numerous occasions).
Tavares alleges that Grobelny [*16] was
deliberately indifferent to known medical risks
when he made choices about a particular
treatment—the course of antibiotics—for him. He
claims that, when Grobelny administered the
antibiotics, he failed to take into account Tavares's
age and to order tests that would have detected
Tavares's diabetes, high blood pressure and chronic
back problems. He alleges that these factors all
made it more likely that the antibiotics would cause
hearing loss. But it is well settled that "the question
whether . . . additional diagnostic techniques . . .
[are] indicated is a classic example of a matter for
medical judgment," and that the decision not to
order certain diagnostic tests "does not represent
cruel and unusual punishment." Estelle, 429 U.S. at
107. Grobelny's decision not to order tests is
understandable because he was faced with an
emergency situation: an infection which, if left
untreated, could lead to the amputation of Tavares's
hand. When faced with an emergency, members of
prison staff do not violate the Eighth Amendment
unless they act "maliciously and sadistically for the
very purpose of causing harm." Wilson v. Seiter,
501 U.S. 294, 302, 111 S. Ct. 2321, 115 L. Ed. 2d
271 (1991) (quoting Whitley v. Albers, 475 U.S.
312, 320-21, 106 S. Ct. 1078, 89 L. Ed. 2d 251
(1986)); see also Salahuddin, 467 F.3d at 280
(noting that the deliberate indifference standard
applies to "medical-treatment cases not
arising [*17] from emergency situations"). Nothing
in Tavares's allegations raises the inference that
Grobelny acted with anything approaching criminal
recklessness, let alone malice and sadism, when he
administered the antibiotics.
Tavares has not adequately and plausibly alleged
that any of the City Defendants were deliberately
indifferent in connection with the handcuffing
episode. The transportation officers who
handcuffed Tavares without regard to his recent
wrist surgery are not defendants in this action.
Moreover, "the doctrine of respondeat superior
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Page 7 of 11
cannot be used to establish liability under Section
1983." Blyden v. Mancusi, 186 F.3d 252, 264 (2d
Cir. 1999). Because Curtis, a Vice President at
HHC, and Warden Scott were not personally
involved in the decision to handcuff Tavares, the
officers' alleged deliberate indifference cannot be
attributed to them. Finally, Tavares does not allege
that Deutsch was aware of the risk that the officers
would handcuff him: in fact, he claims that it "is
not a protocol" to handcuff a prisoner who has a
wounded hand. (Opp'n to City Defs.' Mot. 11.)
Because deliberate indifference in this context
requires showing that the defendant was actually
aware of the risk he allegedly disregarded, see
Salahuddin, 467 F.3d at 280, Tavares has not
plausibly [*18] alleged that Deutsch was
deliberately indifferent when he failed to direct the
officers not to handcuff Tavares.
Construing his submissions liberally, however,
Tavares has successfully alleged the subjective
element with respect to Deutsch's actions upon
discharging him after his surgery. Tavares claims
that Deutsch disregarded the fact that Tavares
suffered from type-2 diabetes and was thus at
higher risk of infection, and that Deutsch
discharged him early and failed to take necessary
precautions to protect the wound, because Tavares
was needed in court for resentencing. (Opp'n to
City Defs.' Mot. 9-10.) Tavares alleges that the
failure to protect the wound was no mere oversight,
because Deutsch represented to him "that there was
no problem to leave the surgery that way." (Id. at
2.) Tavares thus alleges that Deutsch knew of
Tavares's heightened susceptibility to infection, and
consciously disregarded it by prioritizing the
scheduled resentencing over Tavares's medical
needs. The allegation that a physician chose to give
less efficacious treatment for reasons not deriving
from medical judgment can support a deliberate
indifference claim. See Chance v. Armstrong, 143
F.3d 698, 703-04 (2d Cir. 1998) (holding that the
plaintiff had alleged deliberate [*19] indifference
where the defendant chose a type of treatment
based on monetary incentives); Stevens v. Goord,
535 F. Supp. 2d 373, 388 (S.D.N.Y. 2008)
("judgments that have no sound medical basis . . .
and appear designed simply to justify an easier
course of treatment . . . may provide the basis of a[n
Eight Amendment] claim").
Tavares has also plausibly alleged that he received
inadequate care, based on Deutsch's failure to
protect his wound. The extent of the inadequacy is
not clear from Tavares's submissions. In the
amended complaint, Tavares simply states that the
wound was left "unbandage[d]." (Am. Compl. ¶
16.) He elaborates in his opposition papers, stating
that "the surgery was [sic] been left open" (Opp'n to
City Defs.' Mot. 2), faulting Deutsch for "not
protecting the hand with some type of gasket in
order for the open wound not to get infected" (id. at
10), and referring to "a newly open wound." (Id. at
10.) Nevertheless, and although a reference to
sutures in the Bellevue medical records conflicts
with the suggestion that Tavares was discharged
before his surgical wound was even closed (see
Pl.'s Aff. Ex. 2), Tavares has at the very least
alleged that Deutsch failed to dress or bandage the
wound, or to put Tavares's wrist in a splint. At this
stage in this litigation, the [*20] Court cannot
conclude as a matter of law that this constituted
adequate medical care. See Smith v. Carpenter, 316
F.3d 178, 186 (2d Cir. 2003) (stating that "the
failure to provide treatment for an otherwise
insignificant wound may violate the Eighth
Amendment if the wound develops signs of
infection, creating a substantial risk of injury in the
absence of appropriate medical treatment").
Accordingly, Tavares has successfully alleged a
deliberate indifference claim against Deutsch based
on the failure to protect his wound. He has not
alleged, however, that it is unreasonable to
discharge a patient who underwent carpal tunnel
surgery, even one with type-2 diabetes, a few hours
after the operation. Thus, the portion of his claim
premised on the time of his discharge from
Bellevue is dismissed.
Tavares's claim against HHC, a municipal
organization, fails because he has not satisfied the
requirements of Monell v. Department of Socal
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Page 8 of 11
Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d
611 (1978). In that case, the Supreme Court held
that a municipal organization may be held liable
under section 1983 only if the plaintiff's injury is
the result of municipal policy, custom, or practice.
Id. at 694. It may not be held liable solely "by
application of the doctrine of respondeat superior."
Pembaur v. City of Cincinnati, 475 U.S. 469, 478,
106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986).
Generally, "a single incident alleged in a complaint,
especially if it involved [*21] only actors below
the policy making level, does not suffice to show a
municipal policy." DeCarlo v. Fry, 141 F.3d 56, 61
(2d Cir. 1998). Tavares has not alleged any facts
suggesting that Deutsch's failure to protect his
wound was anything other than an isolated incident.
He does not allege that HHC has a policy, or even
an informal understanding, requiring doctors to
prioritize patients' court appearances over their
medical needs. Nor does he allege that HHC
management had actual or constructive notice that
doctors frequently did this, and failed to act to
remedy the problem. See Connick v. Thompson, __
U.S. __, 131 S. Ct. 1350, 1360, 179 L. Ed. 2d 417
(2011). With respect to the transportation officers
(who the Court assumes arguendo violated
Tavares's rights and were HHC employees),
Tavares alleges that they were acting in violation of
protocol, as noted earlier. Accordingly, the claim
against HHC must be dismissed.
To summarize, Tavares has not successfully alleged
the subjective element of his deliberate indifference
claim against any of the individual City Defendants
besides Deutsch, and accordingly, his section 1983
claims against them must be dismissed. His claim
against HHC is dismissed for failure to show a
municipal policy, custom, or practice. His claim
against Deutsch survives, however, but only insofar
as [*22] it is premised on Deutsch's failure to
bandage or otherwise protect Tavares's wound
following the carpal tunnel surgery.
B. Claims against the DOCCS Defendants
Tavares alleges that the DOCCS Defendants
conspired to cover up the City Defendants'
wrongdoing in causing him to develop hearing loss,
by fabricating a false reason for that hearing loss.
Tavares does not allege that he was provided with
inadequate medical care at any point after he was
transferred to a DOCCS-run facility.8 His claims
against the DOCCS Defendants are thus best
understood as section 1983 "cover-up" and
conspiracy claims. The DOCCS Defendants argue
that these claims should be dismissed because
Tavares failed to exhaust the administrative
remedies provided by the DOCCS's grievance
resolution program, but the Court need not address
that argument, because Tavares has not adequately
stated the claims.
In a section 1983 claim alleging a cover-up by
government agents, the constitutional right at issue
is the First Amendment right of access to courts: the
theory is that the cover-up has made it impossible
for the plaintiff to litigate an underlying claim,
because material evidence was destroyed, for
instance, or because the statute of limitations
expired before the plaintiff discovered the cover-
up. See Christopher v. Harbury, 536 U.S. 403, 413-
14, 122 S. Ct. 2179, 153 L. Ed. 2d 413 & n.11
(2002) (describing these claims as "backward-
looking access claims"). The Second Circuit has
emphasized, however, that "[t]he viability of [such]
claims is far from clear," pointing out that the
Harbury decision was careful not to endorse their
validity. Sousa v. Marquez, 702 F.3d 124, 128 (2d
Cir. 2012).
8 In his submission in opposition to the DOCCS Defendants' motion,
Tavares claims that the DOCCS Defendants delayed issuing him
hearing aids, and that this delay constituted cruel and unusual
punishment violating the Eighth Amendment, as well as a violation
of the Americans with Disabilities Act ("ADA"). (Opp'n to DOCCS
Defs.' Mot. 15-16; see also Pl.'s [*23] Aff. ¶¶ 17-19.) A plaintiff,
however, "may not amend his complaint to add new claims by
raising them for the first time in his motion papers." Ifill v. N.Y. State
Court Officers Ass'n, 655 F. Supp. 2d 382, 393 (S.D.N.Y. 2009)
(citing Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d
Cir.1998)). Accordingly, the Court will not consider these claims,
but notes that in any event, the ADA claim fails, because
"[i]ndividuals cannot be named as defendants in ADA suits in either
their official or representative capacities." Carrasquillo v. City of
N.Y., 324 F. Supp. 2d 428, 441 (S.D.N.Y. 2004).
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Page 9 of 11
Nevertheless, even assuming backward-looking
access claims are actionable, Tavares's fails.
"[S]uch claims are available only if a judicial
remedy was 'completely foreclosed'" by the alleged
cover-up. Id. (quoting [*24] Broudy v. Mather, 460
F.3d 106, 120, 373 U.S. App. D.C. 170 (D.C. Cir.
2006)). Tavares has not alleged that the DOCCS
Defendants' actions prevented him from litigating
his underlying Eighth Amendment and state-law
medical malpractice claims against the City
Defendants—indeed, he is bringing those very
claims in this action. Moreover, although the City
Defendants argue that Tavares's malpractice claim
is time-barred (City Defs.' Br. 21-22), Tavares does
not allege that the allegedly false statements made
by the DOCCS Defendants caused him to delay
bringing the claim. In fact, he does not allege that
he ever believed the DOCCS Defendants'
contention that his hearing loss was caused by noise
exposure. Finally, to the extent Tavares claims that
the allegedly falsified medical records make it more
difficult for him to prove his malpractice case now,
the claim still fails, because
a plaintiff who has knowledge of the facts
giving rise to his claim and an opportunity to
rebut opposing evidence does have adequate
access to a judicial remedy. If a governmental
official is lying, for instance, the plaintiff can
attempt to demonstrate the falsity of the
official's statements through discovery and
argument before the court. The point of the
backward-looking right of access recognized
by [*25] other circuits is to ensure that
plaintiffs have that opportunity—not to convert
every instance of deception by a governmental
witness into a separate federal lawsuit.
Sousa, 702 F.3d 124, 128-129 (emphasis in
original). Here, none of the DOCCS Defendants'
actions foreclosed Tavares's opportunity to argue
that the medical records did not accurately state the
cause of his hearing loss. Thus, his "cover-up"
claim under section 1983 must be dismissed.9
9 In his submission in opposition to the DOCCS Defendants' motion,
The conspiracy claim fares no better. A section
1983 conspiracy claim must allege "(1) an
agreement between two or more state actors . . . ;
(2) to act in concert to inflict an unconstitutional
injury; and (3) an overt act done in furtherance of
that goal causing damages." Pangburn v.
Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).
"[C]omplaints containing only conclusory,
vague, [*26] or general allegations that the
defendants have engaged in a conspiracy to deprive
the plaintiff of his constitutional rights are properly
dismissed." Ciambriello v. Cnty. of Nassau, 292
F.3d 307, 325 (2d Cir. 2002) (quoting Dwares v.
City of N.Y., 985 F.2d 94, 100 (2d Cir. 1993)).
Specifically, a complaint "must provide some
factual basis supporting a meeting of the minds,
such that defendants entered into an agreement,
express or tacit, to achieve the unlawful end." Webb
v. Goord, 340 F.3d 105, 110 (2d Cir. 2003)
(discussing conspiracies under 42 U.S.C. § 1985).
Tavares's allegations do not meet this standard. The
amended complaint simply reads: "Defendants Dr.
Nelson Muthra, and MD Maryann Genovese went
even further in trying to cover-up the Defendants at
Belleview Hospital by stating that Plaintiff hearing
loss was indeed due to working in construction with
heavy equipments without any facts to support their
statement, making Dr. Muthra and MD Genevese
co-conspiritor by trying to support or endorced
Defendant Dr. Lawrence Meiteles medical report"
(sic). (Am. Compl. ¶ 11.) Tavares thus jumps
directly from the DOCCS Defendants' separate
statements to the conclusion that they were
Tavares attempts to rebut these arguments by claiming that the
DOCCS Defendants violated 18 U.S.C. § 1035(a)(2), which forbids
making "materially false, fictitious, or fraudulent statements . . . in
connection with the delivery of . . . health care . . . services." Section
1035, however, is a criminal statute, for which there is no private
right of action. Hankins v. Super. Ct., No. 1:12-cv-01740-LJO-SKO,
2014 U.S. Dist. LEXIS 18636, 2014 WL 584311, at *3-4 (E.D. Cal.
Feb. 12, 2014); McCray v. U.S. Postal Serv., No. 10-30171-MAP,
2011 U.S. Dist. LEXIS 153516, 2011 WL 7429503, at *4 (D. Mass.
Nov. 15, 2011), adopted, 2012 U.S. Dist. LEXIS 23486, 2012 WL
612509 (D. Mass. Feb. 24, 2012); Slovinec v. Ill. Dep't of Human
Servs., No. 02 C 4124, 2005 U.S. Dist. LEXIS 44523, 2005 WL
442555, at *7 n.7 (N.D. Ill. Feb. 22, 2005).
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Page 10 of 11
conspiring together. "Merely to assert that a
conspiracy occurred, however, does not suffice.
Rather, [Tavares] must allege specific facts that, if
taken as true, make it plausible that [*27] [the
DOCCS Defendants] had some agreement or
understanding . . . to commit the alleged
constitutional violations." Bermudez v. City of N.Y.,
No. 11 Civ. 750(LAP), 2013 U.S. Dist. LEXIS
20371, 2013 WL 593791, at *8 (S.D.N.Y. Feb. 14,
2013) (dismissing a conspiracy claim where the
plaintiff alleged that the defendants "conferred and
agreed not to pursue" certain evidence, "agreed not
to disclose" certain information, and "actively
conspired to suppress the actual events"). This the
complaint does not do, and while Tavares's
affidavit submitted in opposition to the DOCCS
Defendants' motion gives slightly more details
about Muthra's statement and Genovese's
endorsement, it, too, fails to put forward any facts
supporting the inference that the DOCCS
Defendants acted in concert. Accordingly,
Tavares's conspiracy claim must be dismissed as
well.
II. State-Law Claims
The complaint can plausibly be read as alleging
medical malpractice against the City Defendants.
That claim, however, is time-barred, and must be
dismissed. Actions for personal injuries against
HHC must be brought no more than one year and
ninety days after the cause of action accrues. N.Y.
Unconsol. Laws § 7401(2). The same time
limitation applies to claims against employees of
New York City agencies and of HHC. N.Y. Gen.
Mun. Law § 50-k(6); N.Y. Unconsol. Laws §
7401(6) ( [*28] defining HHC to be an "agency"
for the purposes of N.Y. Gen. Mun. Law § 50-k). In
New York, a medical malpractice claim accrues on
the date when the alleged negligent act occurred.
N.Y. C.P.L.R. 214-a. Tavares's claim thus accrued,
at the latest, on March 22, 2011, when he was
discharged from Bellevue following his course of
antibiotics. Because this action was filed on May 3,
2013, more than two years later, it is untimely.
Tavares resists this conclusion, arguing that he
attempted to file a medical malpractice action in
state court on May 22, 2012, which, unbeknownst
to him, was never docketed. The Court is unaware
of any rule under which this circumstance would
toll the statute of limitations. In New York, courts
may not toll statutes of limitations in the interest of
justice, except under explicit statutory authority.
N.Y. C.P.L.R. 201; Ali v. Moss, 35 A.D.3d 640, 641,
827 N.Y.S.2d 260 (2d Dep't 2006) ("the courts, in
general, have no inherent power to extend a period
of limitations in the interest of justice"). New York
law provides that when an action is timely
commenced and is then terminated "because of
some error pertaining neither to the claimant's
willingness to prosecute in a timely fashion nor to
the merits of the underlying claim," George v. Mt.
Sinai Hospital, 47 N.Y.2d 170, 178-79, 390 N.E.2d
1156, 417 N.Y.S.2d 231 (1979), the plaintiff may
commence a new action within [*29] six months
after the termination, even if the new action would
otherwise be untimely. N.Y. C.P.L.R. 205(a). In
Tavares's case, however, it appears that his state-
court action was never actually commenced.
Tavares also appears to argue that the City
Defendants should be estopped from asserting a
statute of limitations defense, because the state
court and the New York City Comptroller's Office
failed to process his paperwork for commencing his
state-court lawsuit while giving him the impression
that the lawsuit had been properly commenced.
Equitable estoppel is only applicable, however,
"where it is the defendant's affirmative wrongdoing
. . . which produced the long delay between the
accrual of the cause of action and the institution of
the legal proceeding." Putter v. N. Shore Univ.
Hosp., 7 N.Y.3d 548, 552, 858 N.E.2d 1140, 825
N.Y.S.2d 435 (2006) (quoting Zumpano v. Quinn, 6
N.Y.3d 666, 673, 849 N.E.2d 926, 816 N.Y.S.2d 703
(2006)) (emphasis added); see generally Werking v.
Amity Estates, Inc., 2 N.Y.2d 43, 53, 137 N.E.2d
321, 155 N.Y.S.2d 633 (1956) ("To constitute
estoppel, the person sought to be estopped must do
some act or make some admission with an intention
of influencing the conduct of another." (quoting
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Page 11 of 11
N.Y. Rubber Co. v. Rothery, 107 N.Y. 310, 316, 14
N.E. 269, 12 N.Y. St. 53 (1887)) (ellipsis and
quotation marks omitted)). Because none of the
defendants are alleged to have played any role in
Tavares's failure to commence his state-court
action, estoppel cannot apply against them.
Finally, whatever state-law claims Tavares [*30]
may have against the DOCCS Defendants must be
dismissed, because they may not be brought in
federal court. State-law claims for damages against
DOCCS employees within the scope of their
employment must be brought in the New York
Court of Claims as claims against New York State.
N.Y. Corr. Law § 24(2); Baker v. Coughlin, 77 F.3d
12, 14-16 (2d Cir. 1996). Tavares does not dispute
that this rule applies to the DOCCS Defendants.
CONCLUSION
For the foregoing reasons, the DOCCS Defendants'
motions to dismiss the complaint are GRANTED,
and the City Defendants' motion to dismiss is
GRANTED with respect to all of the City
Defendants except for Deutsch. The motion is
DENIED with respect to Tavares's claim against
Deutsch based on Deutsch's alleged failure to
protect his surgical wound.
Counsel for the defendants shall provide the
plaintiff with copies of all unreported decisions
cited herein.
SO ORDERED.
Dated: New York, New York
January 13, 2015
/s/ P. Kevin Castel
P. Kevin Castel
United States District Judge
End of Document
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