Gillette v. Helms et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
CHRISTOPHER GILLETTE,
Plaintiff,
v.
MARSHALL TRABOUT, Cortland County 	9:24-CV-1398
Jail Doctor; NICK LYNCH, Captain, Cortland 	(BKS/ML)
County Jail – Jail Administrator; ROBERT
GUYER, Sergeant, Cortland County Jail; JOHN
DOE #1, Correction Officer, Cortland County
Jail; DERRAN SMITH, Correction Officer,
Cortland County Jail; CHRISTOPHER KIEHLE,
Correction Officer, Cortland County Jail; and
CORTLAND COUNTY,
Defendants.
____________________________________________
APPEARANCES: 	OF COUNSEL:
CHRISTOPHER GILLETTE
Pro Se Plaintiff
Attica Correctional Facility
Box 149
Attica, New York 14011
FOTI HENRY, PLLC 	DANIEL CARTWRIGHT,
Counsel for Defendants Lynch, Guyer, Smith, 	ESQ.
Kiehle, and Cortland County 	DAVID H. WALSH, ESQ.
403 Main Street, Suite 225
Buffalo, New York 14203
O’CONNOR, O’CONNOR, BRESEE & FIRST, P.C. 	CAROL C. POLES, ESQ.
Counsel for Defendant Trabout 	EMILY PHILLIPS, ESQ.
20 Corporate Woods Boulevard
Albany, New York 12211
MIROSLAV LOVRIC, United States Magistrate Judge
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REPORT and RECOMMENDATION
Currently before the Court, in this civil rights action filed by Christopher Gillette
(“Plaintiff”) against defendants (1) Nick Lynch, Robert Guyer, Derran Smith, Christopher
Kiehle, and Cortland County (collectively “Cortland Defendants”); (2) Marshall Trabout; and (3)
John Doe #1, is Cortland Defendants’ motion to dismiss for failure to state a claim upon which
relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 38.) For the reasons set
forth below, I recommend that Cortland Defendants’ motion to dismiss be denied.
I. 	RELEVANT BACKGROUND
A. 	Plaintiff’s Claims
On April 11, 2025, Chief United States District Judge Brenda K. Sannes issued a
Decision and Order reviewing Plaintiff’s Amended Complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1). (See generally Dkt. No. 13.) Chief Judge Sannes’s Decision
and Order thoroughly outlined the factual allegations contained in Plaintiff’s operative pleading.
(Dkt. No. 13 at 2-6.) At this procedural posture, Plaintiff asserts the following two claims: (1) a
claim of deliberate medical indifference against Defendants Guyer, Smith, John Doe #1, and
Kiehle; and (2) a claim of retaliation pursuant to the First Amendment against Defendants
Lynch, Trabout, and Cortland County. (See generally Dkt. No. 13.)
B. 	Parties’ Briefing on the Motion to Dismiss
1. 	Cortland Defendants’ Motion to Dismiss
Generally, in support of their motion to dismiss, Cortland Defendants assert the following
two arguments: (1) the deliberate medical indifference claims against Defendants Guyer, Smith,
and Kiehle should be dismissed for failure to state a claim upon which relief may be granted; and
(2) the First Amendment retaliation claim against Defendant Lynch should be dismissed for
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failure to state a claim upon which relief may be granted.1 (See generally Dkt. No. 38, Attach.
1.)
More specifically, with respect to their first argument, Cortland Defendants assert that the
Amended Complaint alleged that Plaintiff was sentenced on a parole violation awaiting transfer
to state prison at the time of the subject incident and thus, the deliberate medical indifference
claim is asserted pursuant to the Eighth Amendment and not the Fourteenth Amendment. (Dkt.
No. 38, Attach. 1 at 7-8.) Cortland Defendants argue that the Amended Complaint alleges—and
the extrinsic evidence they attach to their motion reveal—that Plaintiff’s requests for emergency
medical care were not ignored but were considered and responded to in accordance with COVID
policies in place at the time. (Id. at 8-10.) Cortland Defendants argue that hence, Plaintiff failed
to allege facts plausibly suggesting an actionable claim of deliberate indifference to a medical
need pursuant to the Eighth Amendment. (Id.) Cortland Defendants argue in the alternative that
Plaintiff’s medical indifference claims against Defendants Smith, Guyer, and Kiehle should be
dismissed because the Amended Complaint fails to allege a sufficiently serious condition in
urgent or immediate need of medical care as required under the objective prong of the Eighth
Amendment. (Id.) In addition, Cortland Defendants argue that the Amended Complaint fails to
allege facts plausibly suggesting that Defendants Smith, Guyer, and Kiehle possessed the
requisite mens rea to deprive Plaintiff of medical care. (Id.)
1 	Although Cortland Defendants fashion this motion to dismiss as a motion seeking to
dismiss all claims asserted against them, the undersigned notes that their motion does not present
any arguments seeking dismissal of the retaliation claim asserted against Defendant Cortland
County and thus, it is actually a partial motion to dismiss. (Compare Dkt. No. 13 at 10-12
[finding that “plaintiff’s retaliation claims against Cortland County survive sua sponte review
and require a response”], with Dkt. No. 38, Attach. 1 [seeking dismissal of Plaintiff’s deliberate
medical indifference claims against Defendants Guyer, Smith, and Kiehle, and retaliation claim
against Defendant Lynch].)
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With respect to their second argument, Cortland Defendants assert that the extrinsic
evidence attached to their motion to dismiss establishes that Defendant Lynch followed existing
COVID protocol—that was set by the state—by placing Plaintiff into Administrative
Segregation due to his refusal to take a COVID test. (Dkt. No. 38, Attach. 1 at 11-12.) Cortland
Defendants argue that the Amended Complaint fails to allege facts plausibly suggesting that
Defendant Lynch had discretion to override state COVID policy, which therefore forecloses any
claim against Defendant Lynch for retaliation. (Id.)
2. 	Plaintiff’s Response
Generally, in opposition to Cortland Defendants’ motion to dismiss Plaintiff asserts the
following two arguments: (1) the Amended Complaint states a valid and sufficient deliberate
indifference claim against Defendants Guyer, Smith, and Kiehle, which is correctly analyzed
under the Fourteenth Amendment; and (2) the retaliation claim should go forward. (Dkt. No.
45.)
More specifically, with respect to his first argument Plaintiff argues that his deliberate
medical indifference claim was properly analyzed pursuant to the Fourteenth Amendment
because at the time of the incident, he was housed with another inmate who was a pre-trial
detainee. (Dkt. No. 45 at 5.) Plaintiff asserts that when pre-trial detainees and convicted inmates
are housed together, “courts require that the higher legal standard applicable to detainees be
applied to both.” (Id.) Plaintiff argues that, in any event, even when analyzed pursuant to the
Eighth Amendment, the Amended Complaint states a deliberate indifference claim. (Id. at 6-7.)
Plaintiff asserts that he adequately alleged a sufficiently serious mental health condition, namely
bi-polar depression, PTSD, anxiety attacks, and audio and visual hallucinations that resulted in
him driving his head into the cell wall. (Id. at 7-8.) In addition, Plaintiff argues that he alleged
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facts plausibly suggesting the subjective prong because he informed Defendants Guyer, Smith,
and Kiehle that he needed emergency mental health care and they were thus aware that there was
an excessive risk to Plaintiff’s health and safety. (Id. at 8.)
With respect to his second argument, Plaintiff argues that he did not refuse a COVID test
but merely did not have enough information to make an informed decision. (Dkt. No. 45 at 10.)
Plaintiff argues that the policies Cortland Defendants attached to their motion do not establish a
policy that was in effect on April 5, 2024. (Id.) Plaintiff asserts that the policy was outdated, no
longer in effect, and Plaintiff was placed in Administrative Segregation out of retaliation. (Id. at
10-11.) Plaintiff asserts that Defendant Lynch’s retaliation is further underscored by the fact that
on April 18, 2024, Plaintiff was transferred to state prison with fellow inmates who were neither
given COVID tests nor segregated before transfer. (Id. at 11.)
II. 	LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO
STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one 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 Cnty., 549 F. Supp. 2d
204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo
review).
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure 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). In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
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to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a 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 (citing Supreme Court cases) (emphasis added).2
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); 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
2 	Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v.
Artuz, 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine
Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (McAvoy, C.J.).
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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 turn 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. 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.
As for the nature of what is “plausible,” the Supreme Court explained that “[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,
129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [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.” Iqbal, 129 S. Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
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Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(citations omitted).
However, “in a pro se case, the court must view the submissions by a more lenient
standard than that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (Sharpe, M.J.) (quoting Haines v. Kerner, 404 U.S. 519,
520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated
to “‘make reasonable allowances to protect pro se litigants’” from inadvertently forfeiting legal
rights merely because they lack a legal education. Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 475 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). As a
result, Twombly and Iqbal notwithstanding, the court must continue to “construe [a complaint]
broadly, and interpret [it] to raise the strongest arguments that [it] suggests.” Weixel v. Bd. of
Educ., 287 F.3d 139, 146 (2d Cir. 2002).
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,
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(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.3
Moreover, “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.” See Drake v. Delta
Airlines, 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
3 	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 judgment is not necessary under Fed.
R. Civ. P. 12[d] if the “matters outside the pleadings” in consideration 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 never[the]less 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).
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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, 121 (N.D.N.Y. 2004) (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.).
III. 	ANALYSIS
After carefully considering the matter, I recommend that Cortland Defendants’ motion to
dismiss be denied.
As an initial matter, the undersigned notes that Cortland Defendants attached to their motion
the following exhibits for consideration by the Court: (1) a New York State Board of parole revocation
decision dated December 19, 2023, (2) a New York State Department of Corrections and Community
Supervision policy regarding intake procedures updated July 5, 2023, and (3) a letter from Defendant
Lynch to Plaintiff dated April 8, 2024. (See Dkt. No. 38, Attachs. 2, 3, 4.) Cortland Defendants failed to
make any argument (1) why the Court should consider these documents that are outside the pleadings, or
(2) how these documents fall into one of the four categories of documents that the Court may consider on
a motion pursuant to Fed. R. Civ. P. 12(b)(6) without converting it to a motion for summary judgment
pursuant to Fed. R. Civ. P. 56. See L-7 Designs, Inc., 2011 WL 2135734, at *1. After reviewing
the documents, it does not appear that the documents contained in Dkt. No. 38, Attachs. 2, 3, 4
were (1) attached to the Amended Complaint or answer, (2) incorporated by reference in the
Amended Complaint, (3) “integral” to the Amended Complaint, or (4) a matter of which the
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Court can take judicial notice of for factual background of the case. See id. The undersigned
declines to convert Cortland Defendants’ motion to dismiss to a motion for summary judgment at
this juncture. As a result, the undersigned does not consider these documents for purposes of
reviewing Cortland Defendants’ motion.4
A. 	Deliberate Medical Indifference Claim
For the reasons set forth in Cortland Defendants’ memorandum of law, I find that Plaintiff’s
deliberate medical indifference claim is properly analyzed pursuant to the Eighth Amendment because
Plaintiff was sentenced on a parole violation awaiting transfer to a state prison at the time of the subject
incident. (Dkt. No. 38, Attach. 1 at 7-8 [citing Dkt. No. 16 at ¶ 17]); see also Smith v. Fricke, 635 F.
Supp. 3d 152, 158 n.1 (N.D.N.Y. 2022) (Sannes, C.J.) (“because Plaintiff was convicted of a parole
violation at the relevant time his deliberate indifference claim is governed by the Eighth Amendment.”).
“The Eighth Amendment mandates that prison officials provide adequate medical care to
inmates.” Battle v. Nurse Biorefrence, 25-CV-1534, 2026 WL 177788, at *7 (N.D.N.Y. Jan. 22, 2026)
(Sannes, C.J.) (citing Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). “An Eighth Amendment claim
arising out of inadequate medical care requires a demonstration of deliberate indifference to a prisoner’s
serious medical needs.” Hill, 657 F.3d at 122 (internal quotation marks omitted). A deliberate medical
indifference claim has objective and subjective components. Id. “Objectively, the alleged deprivation
must be sufficiently serious, 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) (internal
quotation marks omitted). “As to the subjective element, an official acts with deliberate indifference
4 	“Apart from these circumstances, a court must either exclude extrinsic materials from its
consideration or convert the motion to dismiss into a motion for summary judgment and provide
the parties with an opportunity to conduct relevant discovery and submit supporting evidence.”
Doe v. Bank of America, N.A., 25-CV-8520, 2026 WL 380385, at *6 n.3 (S.D.N.Y. Feb. 11,
2026) (citing Fed. R. Civ. P. 12(d)).
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when he knows of and disregards an excessive risk to inmate health or safety.” Battle, 2026 WL 177788,
at *7 (citing Hill, 657 F.3d at 122).
The Amended Complaint alleges that on April 5, 2024, Plaintiff requested Defendant Guyer
summon emergency mental health treatment for Plaintiff due to his panic attacks, fear, paranoia, and
voices in his head, and asked to see medical for back pain. (Dkt. No. 16 at ¶ 25.) The Amended
Complaint alleges that on April 5, 2024, Plaintiff had the same conversation with Defendant Smith. (Id.
at ¶ 26.) The Amended Complaint alleges that on April 13, 2024, Plaintiff told Defendant Kiehle that he
“desperately need[ed]” emergency mental health treatment. (Id. at ¶ 39.) The Amended Complaint
alleges that Plaintiff was diagnosed with bipolar disorder, depression, post traumatic stress disorder,
anxiety attacks, and audio and visual hallucinations, and that Cortland Defendants were aware of these
diagnoses. (Id. at ¶ 55.)
Drawing all reasonable inferences in favor of Plaintiff at the pleading stage, the undersigned
concludes that Plaintiff plausibly alleged that his need for mental health treatment was sufficiently
serious, as he suffered from panic attacks, fear, paranoia, and voices in his head. (Dkt. No. 16 at ¶¶ 25,
26, 39); Cruz-Droz v. Marquis, 17-CV-1291, 2018 WL 1368907, at *5 (D. Conn. Mar. 16, 2018) (citing,
inter alia, Torrez v. Dep’t of Corr., 17-CV-1223, 2017 WL 3841681, at *4 (D. Conn. Sept. 1, 2017) (lack
of mental health treatment for post-traumatic stress disorder and other mental illnesses supported claim
for deliberate indifference to mental health needs); Card v. Coleman, 14-CV-0830, 2014 WL 5420894, at
*3 (D. Conn. Oct. 22, 2014) (plaintiff stated plausible claims of deliberate indifference to mental health
needs where prison officials failed to treat him for, among other conditions, anxiety and insomnia))
(concluding that “at the pleadings stage . . . plaintiff sufficiently alleges that his need for treatment was
sufficiently serious, as he suffered from increased anxiety, panic attacks, insomnia, and post-traumatic
stress syndrome as a result of the fifteen-day delay.”).
Moreover, construing the Amended Complaint liberally, Plaintiff alleges that Defendants Guyer,
Smith, and Kiehle were aware of a substantial risk that Plaintiff would suffer serious harm as a result of a
delay or refusal to provide treatment because Plaintiff specifically requested mental health treatment for
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his panic attacks, fear, paranoia, and voices. (Dkt. No. 16 at ¶¶ 25, 26, 39.) Although the Amended
Complaint alleges that Plaintiff received notifications from jail personnel informing him that he was
prohibited from leaving his cell (id. at ¶¶ 27-28), this allegation does not contradict the allegation that
officers ignored Plaintiff’s requests for emergency care. (Dkt. No. 38, Attach. 1 at 10.) The Amended
Complaint does not present any allegations that would bar Plaintiff from receiving mental health
treatment cell-side or through some other alternative means while completing his alleged quarantine. (See
generally Dkt. No. 16.) Further, the notifications came two to three days after Plaintiff sought urgent
mental health treatment access through Defendants Guyer and Smith (compare Dkt. No. 16 at ¶¶ 25-26,
35, with Dkt. No. 16 at ¶¶ 27-28).
As a result, I recommend denial of Cortland Defendants’ motion to dismiss Plaintiff’s deliberate
medical indifference claims against Defendants Guyer, Smith, and Kiehle for failure to state a claim upon
which relief may be granted.
B. 	Retaliation Claim
To state a claim of retaliation under the First Amendment, a plaintiff must allege facts
plausibly suggesting “the following: ‘(1) that the speech or conduct at issue was “protected;” (2)
that the defendant took adverse action against the plaintiff; and (3) there was a causal connection
between the protected speech and the adverse action.’” Gill v. Pidlypchak, 389 F.3d 379, 380
(2d Cir. 2004) overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506
(2002)).
Cortland Defendants seek dismissal of Plaintiff’s retaliation claim against Defendant Lynch based
on “the extrinsic evidence accompanying [their] motion” which, according to them, “disprove[s] any
causal relationship between Plaintiff’s filing of grievances and the alleged retaliation.” (Dkt. No. 38,
Attach. 1 at 11-12.)
As set forth above, the undersigned does not consider the attachments contained in Cortland
Defendants’ motion to dismiss because the documents do not fit into one of the four categories that the
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Court may consider on a motion pursuant to Fed. R. Civ. P. 12(b)(6) without converting it to a motion for
summary judgment pursuant to Fed. R. Civ. P. 56.
The Amended Complaint alleges that Plaintiff filed an Article 78 petition in Cortland County
Supreme Court that named Defendant Lynch as a respondent (Dkt. No. 16 at 6, 42-43) and filed
grievances that resulted in Defendant Lynch’s admonishment for not responding within five days (id. at 7-
8). The Amended Complaint alleges that in response to a request form that Plaintiff filed on “February
30, 2024,” Defendant Lynch responded, “we are reviewing the [Article 78] court order.” (Dkt. No. 16 at
7-8; Dkt. No. 13 at 3-4.) The Amended Complaint alleges that as a result of the grievances and lawsuits,
on April 5, 2024, Defendants Lynch and Trabout placed Plaintiff on quarantine and Administrative
Segregation pursuant to an outdated DOCCS policy that they knew was no longer in effect. (Dkt. No. 16
at 8-9.)
Based on these factual allegations, I find that the Amended Complaint adequately alleges a causal
connection between Plaintiff’s protected speech and the adverse action sufficient to withstand a motion to
dismiss. The law is clear that where the protected speech is the filing of a lawsuit and the lawsuit is
actively being litigated, the protected activity is ongoing. Cruz v. Lee, 14-CV-4870, 2016 WL 1060330,
at *7 (S.D.N.Y. Mar. 15, 2016) (holding that the underlying “case was pending—and the protected
activity was therefore ongoing—when the alleged adverse action occurred.”).
Plaintiff alleges that near the end of February 2024, a significant ruling was filed in the Article 78
proceeding and that less than two months later, on April 5, 2024, the alleged adverse action occurred.
(Dkt. No. 16 at 7-9.) The Second Circuit “has not drawn a bright line to define the outer limits beyond
which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a
federal constitutional right and an allegedly retaliatory action.” Gorman-Bakos v. Cornell Coop.
Extension, 252 F.3d 545, 554 (2d Cir. 2001). However, at this procedural posture, the Court may infer
temporal proximity under the circumstances alleged in the Amended Complaint. See Fabrizio v. Rielly,
20-CV-0011, 2022 WL 18402299, at *10 (N.D.N.Y. Dec. 15, 2022) (Lovric, M.J.) (holding that “the
alleged adverse action occurred approximately two months after Plaintiff’s protected conduct and thus,
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15
was within close temporal proximity”), report and recommendation 2023 WL 356204 (N.D.N.Y. Jan. 23,
2023) (Suddaby, J.); see also Hendricks v. Mallozzi, 20-CV-1035, 2022 WL 1129887, at *5 (N.D.N.Y.
Jan. 14, 2022) (Lovric, M.J.) (citations omitted) (“Although there is significant case law to support the
contention that temporal proximity alone is insufficient to survive a motion for summary judgment, the
same is not true at the motion to dismiss stage.”), report and recommendation adopted by 2022 WL
856885 (N.D.N.Y. Mar. 23, 2022) (D’Agostino, J.).
As a result, I recommend that Cortland Defendants’ motion to dismiss Plaintiff’s retaliation claim
against Defendant Lynch be denied.
ACCORDINGLY, it is respectfully
RECOMMENDED that Cortland Defendants’ motion to dismiss for failure to state a
claim upon which relief may be granted (Dkt. No. 38) be DENIED; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report and
Recommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.5
5 	The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein
in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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16
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have
fourteen (14) days within which to file written objections to the foregoing report.6 Such
objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS
REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human
Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: April __, 2026
Binghamton, New York
6 	If you are proceeding pro se and 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 that 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).
15
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Battle v. Nurse Biorefrence, Slip Copy (2026)
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2026 WL 177788
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Shaquill BATTLE, Plaintiff,
v.
NURSE BIOREFRENCE, et al., Defendants.
9:25-CV-1534 (BKS/PJE)
|
Signed 01/22/2026
Attorneys and Law Firms
SHAQUILL BATTLE, Plaintiff, pro se, 15-B-2077,
Gouverneur Correctional Facility, Scotch Settlement Road,
P.O. Box 480, Gouverneur, NY 13642
DECISION AND ORDER
Brenda K. Sannes, Chief United States District Judge
I. INTRODUCTION
*1 The Clerk has sent to the Court for review a complaint
filed by pro se plaintiff Shaquill Battle (“plaintiff”) pursuant
to 42 U.S.C. § 1983 (“Section 1983”) asserting claims
arising out of his confinement in the custody of the New
York State Department of Corrections and Community
Supervision (“DOOCS”). Dkt. No. 1 (“Compl.”). Plaintiff,
who is presently confined at Gouverneur Correctional Facility
(“Gouverneur C.F.”), has not paid the statutory filing fee and
seeks leave to proceed in forma pauperis (“IFP”). Dkt. No. 6
(“IFP Application”).
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). 1 “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)).
Upon review of plaintiff's IFP Application, the Court finds
that plaintiff has demonstrated sufficient economic need and
filed the inmate authorization form required in the Northern
District of New York. Dkt. No. 3. Plaintiff's IFP Application
(Dkt. No. 6) is granted.
III. DISCUSSION
A. Governing Legal Standard
Having found that plaintiff meets the financial criteria for
commencing this action IFP, and because plaintiff seeks relief
from an officer or employee of a governmental entity, the
Court must consider the sufficiency of the allegations set forth
in the complaint in light of 28 U.S.C. §§ 1915(e) and 1915A.
Section 1915(e) of Title 28 of the United States Code directs
that, when a plaintiff seeks to proceed in forma pauperis, “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 U.S.C. § 1915(e)(2)(B).
Similarly, 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(b).
*2 Additionally, when reviewing a complaint, the Court may
also look to the Federal Rules of Civil Procedure. Rule 8 of
the Federal Rules of Civil Procedure provides that a pleading
which sets forth a claim for relief shall contain, inter alia, “a
short and plain statement of the claim showing that the pleader
is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). The purpose of
Rule 8 “is to give fair notice of the claim being asserted so as
to permit the adverse party the opportunity to file a responsive
answer, prepare an adequate defense and determine whether
the doctrine of res judicata is applicable.” Hudson v. Artuz,
No. 95 Civ. 4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov.
30, 1998) (quoting Powell v. Marine Midland Bank, No. 95-
CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y. June 23, 1995)
(other citations omitted)).
A court should not dismiss a complaint if the plaintiff
has stated “enough facts to state a claim to relief that is
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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). While 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). Rule 8 “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Id. Thus, a pleading that contains only
allegations which “are so vague as to fail to give the
defendants adequate notice of the claims against them” is
subject to dismissal. Sheehy v. Brown, 335 Fed. App'x 102,
104 (2d Cir. 2009).
The Court will construe the allegations in the complaint with
the utmost leniency. See, e.g., Haines v. Kerner, 404 U.S. 519,
520 (1972) (holding that a pro se litigant's complaint is to be
held “to less stringent standards than formal pleadings drafted
by lawyers.”).
B. Summary of the Complaint
The complaint alleges wrongdoing that occurred at Clinton
Correctional Facility (“Clinton C.F.”) and Gouverneur C.F.
See generally Compl. The following facts are set forth as
alleged by plaintiff in his complaint.
1. Clinton C.F.
On or about December 30, 2024, plaintiff was called to the
medical department for a “TB test.” Compl. at 6, 10. Plaintiff
objected and “unequivocally relayed” that he took a test
in November 2024. Id. at 6. Defendant Nurse Biorefrence
(“Biorefrence”) injected “hot fluid” into plaintiff's arm that
“made [him] jump.” Id. at 6, 10. Due to the injection, plaintiff
suffered from headaches, sleep loss, a “permanent twitch,”
and loss of range of motion. Id. at 6. Plaintiff filed a complaint
with defendant Deputy Superintendent of Health Harrigan
(“Harrigan”) and “corresponded at least 9 letters.” Id. at 7.
While confined at Clinton C.F., plaintiff was treated by
defendants Nurse Kim (“Kim”) and Doctor May (“May”). See
generally Compl. Kim provided cough syrup and medication
for chest pain. Id. at 7. When plaintiff complained about a
migraine, Kim “laughed.” Id. During a visit with May, the
doctor conducted a “breathing test” using a stethoscope and
noticed a mass on plaintiff's “lat [sic] or arm area.” Id. At
the time, plaintiff was “covered in puss-filled bumps” due to
the “poison” administered by Biorefrence. Compl. at 10. May
told him that the bumps may be an allergy. Id. at 7. However,
when plaintiff asked May if he could show her the rest of his
body, she refused. Id. During a second visit with May, on April
12, 2025, plaintiff was “spitting green phlegm” and presented
with high blood pressure and more “bumps.” Id. May said
she would “write a script” but plaintiff did not receive any
medication, including Tylenol. Compl. at 7.
*3 From February 2025 until March 2025, plaintiff was
denied recreation. Compl. at 11, 15. From February 2025
until April 2025, due to an “illegal lockdown,” plaintiff's
meals were served on dirty trays without a dessert, drink,
or vegetables. Id. Inmates received moldy meat, wet bread,
spoiled fruit and milk, and hard rice that was cold and “broke
[plaintiff's] teeth.” Id. Plaintiff's trays were served through
the “feed up slot” in his cell, which was covered with mucus
and feces. Compl. at 13. Plaintiff refused “over 9 meals” and
“nobody logged it” or provided plaintiff with Ensure. Id. at
12. Plaintiff suffered from diarrhea, stomach pain, headaches,
and dry mouth. Id. Plaintiff was “starving” until he was able
to receive commissary. Id. However, plaintiff's commissary
credits were “robbed.” Compl. at 12.
On March 12, 2025, plaintiff received a misbehavior report
and was transferred to the Special Housing Unit for 158 days.
Compl. at 10. Defendant Superintendent M.J. King (“King”)
and the Deputy Superintendent for Security (“DSS”) were
present in the SHU when plaintiff arrived and “heard his clear
objections” to being housed in the unit. Id. When he arrived,
plaintiff was strip searched by Sergeant Martin 2 and forced to
face a wall, naked, for twenty minutes. Id. at 10. The windows
were open and, as a result, his hands froze. Id.
While in the SHU, plaintiff did not receive the “minimum
standards” which included “three sets of everything.” Compl.
at 9-10. Plaintiff was “stocked” with only the clothes on his
body and did not have a pillow, headphones, books, a sweater,
or footwear. Id. Plaintiff stood in his socks in piles of dirt,
garbage, and feces. Id. at 10-11. The cell was covered in dirt
and “snot and mucus.” Id. Plaintiff complained to Minkler,
who responded, “you ain't getting [expletive].” Id. at 10.
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On March 15, 2025, defendant Correctional Officer Minkler
(“Minkler”) brought plaintiff a tray marked “hospital.”
Compl. at 11. Plaintiff refused the meal and Minkler laughed.
Id. at 12.
On March 18, 2025, defendant Correctional Officer Friend
(“Friend”) escorted plaintiff to recreation. Compl. at 8.
Plaintiff was directed to put his personal property into a
bin. Id. At approximately 9:30 a.m., plaintiff spoke with an
area sergeant and asked about retrieving his legal property
“that was stored.” Id. Defendant Officer Hitts (“Hitts”) gave
plaintiff “several envelopes that were torn or damaged.” Id.
at 9. Plaintiff's storage bags were “cut at the bottom” which
resulted in items falling out. Id. Hitts destroyed his personal
property and, as a result, plaintiff had to “forfeit a claim” in
“the state.” Compl. at 9.
Plaintiff “grieved” his issues involving medical treatment and
his conditions of confinement, to defendants King and the
DSS. Compl. at 7-8. Plaintiff sent mail and made telephone
calls. Id. at 7-8. King referred his mail to “another person.” Id.
at 8. Plaintiff also contacted defendant Commissioner Daniel
Martuscello, III (“Martuscello”) by mail and telephone, but
he did not respond. Id. at 7, 19. Instead, Martuscello asked
defendant Carol D. Moores (“Moores”) to respond. Compl. at
7. Moores told plaintiff to “relay this to [his] care provider.”
Id. Plaintiff also contacted the Office of Special Investigations
(“OSI”). Id. Defendant OSI Investigator “came to see”
plaintiff and told him he “would get me to medical.” Compl.
at 8.
2. Gouverneur C.F.
On April 22, 2025, plaintiff was transferred to Gouverneur
C.F. Compl. at 15. When plaintiff received his property
from Clinton C.F., he noticed that paper, food, clothing,
hygiene items, electronics, and photographs were missing. Id.
at 16. Friend and Hitts failed to store plaintiff's property or
intentionally sole items. Id.
*4 From April 25, 2025 until October 2025, defendants
Correction Officers Constigan (“Constigan”), Glandeur
(“Glandeur”), Carr (“Carr”), Showers (“Showers”), Milsap
(“Milsap”) and McDonald (“McDonald”) served plaintiff
with trays that were “marked with tape” and contained
food and drink that was tampered, contaminated, or spoiled.
Compl. at 16-25. Some of the trays contained blood, dead
bugs or maggots. Id. When they served the trays, defendants
used racial slurs and verbally harassed plaintiff. Id. As a
result, plaintiff refused food. Id. Plaintiff vomited, “broke
out” with bumps on his arms, suffered from chest pains,
itching on his head and neck and shoulders, and “had to
use the bathroom 3 times in 1 hour.” Compl. at 16-25.
On April 30, 2025, defendant Correction Officer McDonald
(“McDonald”) served a meal that was tampered with and said,
“they say your [sic] an [expletive] in your last jail.” Id.
On April 30, 2025, plaintiff complained about the food to
defendant Sergeant Hull (“Hull”). Compl. at 20. Hull stated
that he would supervise the meals, but he never followed
through. Id. Defendants’ “conduct” caused plaintiff to file
a complaint in the wrong jurisdiction and interfered with
plaintiff's complaint in the Western District of New York. Id.
at 17.
On May 21, 2025, defendants Correctional Officer Lynch
(“Lynch”), Milsap, Constigan, and Glandeur “ransacked”
plaintiff's cell. Compl. at 18.
On September 3, 2025, the “executive team,” including
defendant Superintendent Rockwood (“Rockwood”),
“walked around.” Compl. at 23. Plaintiff yelled to Rockwood
who responded that he “did not know anything.” Id. Plaintiff
wrote to Rockwood “over 10 times.” Id. Plaintiff wrote
to defendant Supervisor McCormick (“McCormick”), four
times, and did not receive a response. Id. Plaintiff attempted
to file grievances with defendant Ms. Hutchins (“Hutchins”),
but she refused to accept the grievances. Compl. at 22-24.
Hull made rounds every day from June through August and
“never did anything to assist [plaintiff] in filing complaints.”
Id.
While confined at Gouverneur C.F., plaintiff submitted sick
call requests complaining of chest and side pain, a “mass
growing on his left side, black and red “itchy” bumps, and
“green phlegm” and was treated by defendants Nurse Woods
(“Woods”), Nurse Coffey #1 (“Coffey #1”), and Nurse Coffey
#2 (“Coffey #2”). See generally Compl. and Dkt. No. 4. When
plaintiff saw Woods, she ordered blood drawn for allergy
testing. Compl. at 18. However, Woods refused to test for
“infection or cancer” and said, “it is not serious.” Id. Woods
told plaintiff he had, “nothing to complain about” and refused
to treat him for his chest/side pain, phlegm and rash that
resulted from food issues. Id. at 20-21. Plaintiff told Coffey
#1 that Tylenol did not alleviate his pain and she said, “if it
doesn't work, it doesn't work” and walked away. Compl. at 21.
Woods, Coffey #1, and defendant Nurse Coffey #2 (“Coffey
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#2”) repeatedly ignored plaintiff's sick call requests related
to pain, vomiting, and other medical issues associated with
ingesting contaminated food and his refusal to eat. Compl. at
22-24. On one occasion, Coffey #2 came to plaintiff's cell,
took his temperature, laughed, and did nothing else. Id.
While confined at Gouverneur C.F., plaintiff was not
permitted to possess religious study materials or magazines
and was not permitted to “receive Jehovah witness.” Compl.
at 25-26.
Construed liberally 3 , the complaint contains the following:
(1) claims related to plaintiff's First Amendment right to
religious freedom; (2) Eighth Amendment conditions of
confinement; (3) Eighth Amendment deliberate medical
indifference claims; (4) Fourth Amendment claims related to
illegal searches; (5) First Amendment access-to-court claims;
(6) Fourteenth Amendment due process claims related to an
unwanted injection and property; (7) constitutional claims
related to the grievance process; and (8) state law claims.
See Compl. at 27-31. Plaintiff seeks compensatory damages
and injunctive relief. Id. at 27. For a complete statement of
plaintiff's claims and the facts he relies on in support of those
claims, reference is made to the complaint.
C. Analysis
*5 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).
“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) (citing City of Oklahoma City v. Tuttle, 471 U.S.
808, 816 (1985)).
“Personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
[Section] 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885
(2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d
Cir. 1977)). As the Supreme Court has noted, a defendant may
only be held accountable for his actions under Section 1983.
See Iqbal, 556 U.S. at 683 (“[P]etitioners cannot be held liable
unless they themselves acted on account of a constitutionally
protected characteristic.”).
In order to prevail on a Section 1983 cause of action against
an individual, a plaintiff must show “a tangible connection
between the acts of a defendant and the injuries suffered.”
Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). This is
true even for supervisory officials. See Tangreti v. Bachmann,
983 F.3d 609, 618 (2d Cir. 2020) (“There is no special
rule for supervisor liability.”). “[A] plaintiff must plead and
prove ‘that each Government-official defendant, [including
supervisors,] through the official's own individual actions, has
violated the Constitution.’ ” Id. (quoting Iqbal, 556 U.S. at
676).
1. Rule 10
The complaint contains allegations related to individuals
who are not identified in the caption, or list of parties, as
defendants. See Compl. 10, 13, 15, 16, 18, 20, 21, 23, 24.
Rule 10(a) of the Federal Rules of Civil Procedure provides
that, “the title of the complaint must name all the parties.”
Fed. R. Civ. P. 10(a). A party not named in the caption of the
complaint is not a party to the action. Abbas v. U.S., No. 10-
CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug. 1, 2014)
(holding that the failure to name the individual defendants
against whom the plaintiff intends to assert claims makes it
“infeasible for the Court to determine which of the individual
officers mentioned in the body of the complaint should be
deemed to be defendants to which claims”).
Accordingly, plaintiff's allegations against any individual
who is not named or identified in the amended complaint or
caption, as John Doe or otherwise, are dismissed for failure
to state a claim. See Whitley v. Krinser, No. 06-CV-0575,
2007 WL 2375814, at *1 (W.D.N.Y. Aug. 15, 2007); Robles
v. Armstrong, No. 3:03-CV-1634, 2006 WL 752857, at *1
n.1 (D. Conn. Mar. 17, 2006) (“Because the John and Jane
Does are not listed in the caption of the Complaint, they are
not defendants and the court does not consider claims against
them.”).
2. Defendant C.O. Gallagher (“Gallagher”)
Plaintiff identifies Gallagher as a defendant in the caption.
However, this defendant is not referenced anywhere in
the body of the complaint and the pleading lacks factual
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allegations sufficient to plausibly suggest that the defendant
was personally involved in conduct that violated plaintiff's
constitutional rights. Thus, the complaint fails to state a
cognizable claim against this defendant. See Cipriani v.
Buffardi, No. 06–CV–0889 (GTS/DRH), 2007 WL 607341,
*1 (N.D.N.Y. Feb. 20, 2007) (“Dismissal is appropriate
where a defendant is listed in the caption, but the body of
the complaint fails to indicate what the defendant did to
the plaintiff.”) (citation omitted); see also Casino v. Rohl,
No. 14-CV-2175, 2014 WL 5425501, at *6 (E.D.N.Y. Oct.
23, 2014) (dismissing complaint since the plaintiff had not
adequately pled the defendant's personal involvement in any
of the constitutional deprivations alleged in the amended
complaint).
3. First Amendment – Religious Freedom
*6 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)).
“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 v. Purcell, 87 F.4th 111, 127-28
(2d Cir. 2023) (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)).
Plaintiff claims that he was not allowed to possess religious
study materials or magazines and was not permitted to
“receive Jehovah witness.” Compl. at 25-26. Initially, the
Court notes that plaintiff has not identified his religious
beliefs and the complaint lacks facts suggesting that his
religious beliefs were “sincerely held.” Moreover, plaintiff
has not plead when, how, or for how long his right to practice
his religion was infringed. Further, even assuming plaintiff
identified his religious beliefs and plead facts suggesting
that his right to practice was infringed, the complaint
fails to suggest that any named defendant was personally
involved in the constitutional violations. Thus, plaintiff's First
Amendment religious 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.
4. Eighth Amendment 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).
a. Conditions of Confinement
While the United States Constitution “ ‘does not mandate
comfortable prisons,’ ... neither does it permit inhumane”
treatment of those in confinement. Farmer v. Brennan, 511
U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452
U.S. 337, 349 (1981)). “To demonstrate that the conditions
of confinement constitute cruel and unusual punishment,
the plaintiff must satisfy both an objective test and a
subjective test.” Jolly v. Coughlin, 76 F.3d 468,480 (2d Cir.
1996) (citation omitted). To satisfy the objective element,
“the plaintiff must demonstrate that the conditions of his
confinement result ‘in unquestioned and serious deprivations
of basic human needs.’ ” Jolly, 76 F.3d at 480 (citation
omitted). “[T]he inmate must show that the conditions, either
alone or in combination, pose an unreasonable risk of serious
damage to his health.” Walker v. Schult, 717 F.3d 119, 125
(2d Cir. 2013) (citation omitted). The Constitution requires
“that prisoners be served ‘nutritionally adequate food that is
prepared and served under conditions which do not present
an immediate danger to the health and well-being of the
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inmates who consume it’ [and] under certain circumstances
a substantial deprivation of food may well be recognized as
being of constitutional dimension.” Robles v. Coughlin, 725
F.2d 12, 15 (2d Cir. 1983).
*7 With respect to the subjective element, plaintiff must
“demonstrate that the defendants imposed those conditions
with ‘deliberate indifference.’ ” Jolly, 76 F.3d at 480 (citation
omitted). To constitute deliberate indifference, “[t]he prison
official must know of, and disregard, an excessive risk to
inmate health or safety.” Walker, 717 F.3d at 125.
i. Clinton C.F.
Plaintiff claims his Eighth Amendment rights were violated
because (1) he was denied recreation; (2) he endured
unconstitutional conditions of confinement in his cells; and
(3) he was served spoiled and contaminated food. See Compl.
at 11-12, 15.
With respect to the claims related to recreation, plaintiff has
failed to plead facts related to who denied plaintiff recreation
and how often he was denied recreation and whether. Indeed,
the complaint lacks any connection between any named
defendant and plaintiff's ability to participate in recreation.
With respect to plaintiff's food, the complaint lacks facts
related to who provided contaminated or tampered meals
from February 2025 until April 2025. While plaintiff claims
that Minkler brought him a tray “marked hospital” on one
occasion, the complaint lacks facts suggesting that the food
on the tray was contaminated, spoiled, or otherwise caused
plaintiff to suffer from any injury.
With respect to plaintiff's SHU confinement, the complaint
lacks facts suggesting that any named defendant was
responsible for the conditions in the SHU. While plaintiff
claims that “Minkler said you ain't getting [expletive],” in
reference to the conditions of his cell, the complaint does
not indicate when this exchange occurred, in what context,
how often and when plaintiff complained to Minkler or any
other information that would allow the Court to conclude that
Minkler was responsible for plaintiff's conditions on any date.
For the reasons set forth herein, plaintiff's Eighth Amendment
conditions-of-confinement claims related to Clinton C.F. are
dismissed without prejudice.
ii. Gouverneur C.F.
At this juncture, the Court directs Constigan, Glandeur,
Carr, Showers, Milsap, McDonald, Hull, Rockwood, and
McCormick to respond to plaintiff's Eighth Amendment
condition-of-confinement claims. This is not a ruling on the
merits and the Court expresses no opinion whether these
claims can survive a properly filed motion to dismiss or for
summary judgment.
b. Deliberate Medical Indifference
The Eighth Amendment mandates that prison officials
provide adequate medical care to inmates. See Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011). “An Eighth
Amendment claim arising out of inadequate medical care
requires a demonstration of deliberate indifference to a
prisoner's serious medical needs.” Id. (internal quotation
marks omitted). A deliberate medical indifference claim has
objective and subjective components. Id. “Objectively, the
alleged deprivation must be sufficiently serious, 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) (internal quotation marks
omitted). As to the subjective element, an official acts with
deliberate indifference when he knows of and disregards an
excessive risk to inmate health or safety. See Hill, 657 F.3d at
122 (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
i. Clinton C.F.
*8 Plaintiff alleges that May, Kim, King, DSS, Martuscello,
Moores, and OSI were deliberately indifferent to his medical
needs. See Compl. at 7-8. However, the allegations in the
complaint belie the claim. To wit, plaintiff admits that he
received medical care and attention from May and Kim
and that he was prescribed cough syrup, medication, and
underwent “breathing testing.” As presently constituted,
plaintiff's allegations amount to nothing more disagreement
with defendants’ course of treatment, which is insufficient to
establish an Eighth Amendment violation. See Washington v.
Westchester Cty. Dep't of Corr., No. 13-CV-5322, 2014 WL
1778410, at *6 (S.D.N.Y. Apr. 25, 2014) (“[I]t is well-settled
that the ultimate decision of whether or not to administer a
treatment or medication is a medical judgment that, without
more, does not amount to deliberate indifference.”); Sonds v.
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St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303,
312 (S.D.N.Y. 2001) (“[D]isagreements over medications,
diagnostic techniques (e.g., the need for X-rays), forms of
treatment, or the need for specialists or the timing of their
intervention, are not adequate grounds for a [§] 1983 claim.
These issues implicate medical judgments and, at worst,
negligence amounting to medical malpractice, but not the
Eighth Amendment.”).
Accordingly, plaintiff's Eighth Amendment deliberate
medical indifference claims related to his medical treatment
at Clinton C.F. are dismissed without prejudice pursuant to
28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b)(1) for
failure to state a claim upon which relief may be granted.
ii. Gouverneur C.F.
In light of the Court's obligation to liberally construe a pro
se litigant's pleadings, defendants Woods, Coffey #1, and
Coffey #2 will be required to respond to plaintiff's medical
indifference claims related to his treatment at Gouverneur
C.F. This is not a ruling on the merits and the Court expresses
no opinion whether these claims can survive a properly filed
motion to dismiss or for summary judgment.
5. Fourth Amendment
The Fourth Amendment prohibits the government from
conducting unreasonable searches. All searches conducted
within a prison must be reasonable. See Hodges v. Stanley,
712 F.2d 34, 35-36 (2d Cir. 1983) (citation omitted). Courts
within the Circuit have upheld routine random strip searches,
including body-cavity inspections, performed on prison
inmates. See Covino v. Patrissi, 967 F.2d 73, 76-80 (2d
Cir. 1992); see also Hurley v. Ward, 584 F.2d 609, 612 (2d
Cir. 1978) (reversing portion of injunction prohibiting strip
searches of prison inmates); Castro-Sanchez v. N.Y. State
Dep't of Corr. Servs., No. 10-CV-8314, 2011 WL 6057837, at
*9 (S.D.N.Y. Dec. 6, 2011) (“Routine random strip searches
of inmates, including body cavity inspections, do not violate
the Fourth Amendment.”). Assessing the reasonableness of
a strip search “requires a balancing of the need for the
particular search against the invasion of personal rights that
the search entails. Courts must consider the scope of the
particular intrusion, the manner in which it is conducted,
the justification for initiating it, and the place in which it is
conducted.” Bell v Wolfish, 441 U.S. 520, 559 (1979).
An inmate bears the burden of showing that a search
was unreasonable, see Shabazz v. Pico, 994 F.Supp. 460,
473 (S.D.N.Y. 1998), so, at the pleading stage, a plaintiff
must “plead facts sufficient to give rise to a plausible
inference” that the search he challenges was unreasonable
under the aforementioned standards, Simmons v. Cripps, No.
12-CV-1061, 2013 WL 1290268, at *21 (S.D.N.Y. Feb. 15,
2013), report and recommendation adopted by 2013 WL
1285417 (S.D.N.Y. Mar. 28, 2013).
As the Court reads the complaint, plaintiff claims that he
was stripped searched by Martin when he arrived in the SHU
and that the search violated his Fourth Amendment rights.
Compl. at 10. As discussed supra, the Court will not engage
in an analysis of any claims against individuals who are not
identified as defendants in the list of parties or caption. For
that reason, the Fourth Amendment claim related to the strip
search is dismissed without prejudice.
*9 Plaintiff also makes a summary statement regarding
his cell being “ransacked” by Lynch, Milsap, Constigan,
and Glandeur. See Compl. at 18. The Fourth Amendment is
inapplicable to the unwarranted search of an inmate's prison
cell, as inmates have no reasonable expectation of privacy
in such a place. See Hudson v. Palmer, 468 U.S. 517, 526
(1984) (“hold[ing] that society is not prepared to recognize
as legitimate any subjective expectation of privacy that a
prisoner might have in his prison cell ...” and thus the Fourth
Amendment does not apply to cell searches); Demaio v.
Mann, 877 F.Supp. 89, 95 (N.D.N.Y. 1995) (“Searches of
prison cells, even arbitrary searches, implicate no protected
constitutional rights.”) (citations omitted).
Accordingly, plaintiff's Fourth Amendment claims are
dismissed without prejudice pursuant to o 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. 4
5. First Amendment – Access to Court
In Bounds v. Smith, the Supreme Court held that access
to the courts is a fundamental right that requires prison
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).
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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. See Lewis v. Casey, 518 U.S. 343, 353 (1996);
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.”).
However, “[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”). “Mere ‘delay in being able to work
on one's legal action or communicate with the courts does not
rise to the level of a constitutional violation.’ ” Davis, 320
F.3d at 352 (citing Jermosen v. Coughlin, 877 F.Supp. 864,
871 (S.D.N.Y. 1995)).
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 Supreme Court instructed that 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.
“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.
*10 Here, plaintiff claims that Hitts destroyed his personal
property and, as a result, plaintiff had to “forfeit a claim”
in “the state.” Compl. at 9. Plaintiff also claims that issues
with his food caused plaintiff to file a complaint in the
wrong jurisdiction and interfered with plaintiff's complaint
in the Western District of New York. Id. at 17. These
vague allegations do not support the conclusion that plaintiff
suffered an “actual injury” as a result of defendants’ actions.
The complaint lacks facts suggesting that plaintiff was unable
to comply with court orders or that he suffered any “actual
injury” in any criminal or civil actions. Indeed, the complaint
does not contain any facts or information related to the
procedural posture of any pending actions. See Taylor v. John
Doe Auburn Med. ADM & Health Care Provider, No. 9:23-
CV-0017 (TJM/ATB), 2023 WL 2806119, at *4 (N.D.N.Y.
Apr. 6, 2023), on reconsideration in part sub nom., 2023 WL
3275781 (N.D.N.Y. May 5, 2023).
Because the complaint lacks any suggestion that plaintiff
suffered an injury to a non-frivolous legal claim concerning
his criminal conviction, habeas corpus petition, or conditions
of confinement, plaintiff's First Amendment claims are
dismissed without prejudice. See Lafferty v. Virts, No. 23-
CV-358, 2024 WL 4134254, at *5 (W.D.N.Y. Sept. 10, 2024);
see also, e.g., Chalif v. Spitzer, No. 05-CV-1355, 2008 WL
1848650, at *11 (Apr. 23, 2008) (“Since plaintiff's complaint
fails to allege any prejudice in the form of interference with
his pursuit of a non-frivolous legal claim, this provides an
independent basis for dismissal[.]”); Joseph v. State, Dep't of
Corrs., No. 92-CV-1566, 1994 WL 688303, at *1 (N.D.N.Y.
Nov. 24, 1994) (dismissing the plaintiff's access to courts
claim because the complaint “failed to allege any adverse
effect caused by the alleged denial of his legal mail”).
6. Fourteenth Amendment Due Process
i. Unwanted Injection
The Fourteenth Amendment protects the right of a competent
person to refuse unwanted medical treatment. Cruzan v. Dir.,
Mo. Dep't of Health, 497 U.S. 261, 278 (1990) (recognizing
“[t]he principle that a competent person has a constitutionally
protected liberty interest in refusing unwanted medical
treatment”). The Second Circuit has held, “[i]t is a firmly
established principle of the common law of New York that
every individual of adult years and sound mind has a right to
determine what shall be done with his own body and to control
the course of his medical treatment.” Kulak v. City of New
York, 88 F.3d 63, 74 (2d Cir.1996) (quoting Rivers v. Katz, 67
N.Y.2d 485, 492 (1986)). Such a right may be set aside only
in narrow circumstances, including those where the patient
“presents a danger to himself or other members of society or
engages in dangerous or potentially destructive conduct with
the institution.” Kulak v. City of New York, 88 F.3d 63, 74 (2d
Cir. 1996).
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At this juncture, the Court finds that the complaint contains
allegations sufficient to state a Fourteenth Amendment claim
against Biorefrence. See Muhammad v. Rabinowitz, No. 11
Civ. 2428, 2012 WL 1155098, at *4 (S.D.N.Y. Apr. 6, 2012)
(the plaintiff alleged sufficient facts including the facility
where he was located, the individuals involved, and the time
period to support a claim of involuntary administration of
medication under the Due Process Clause of the Fourteenth
Amendment). In so ruling, the Court expresses no opinion as
to whether this claim can withstand a properly filed motion to
dismiss or for summary judgment.
ii. Property
The Supreme Court has held that the negligent or intentional
deprivation of prisoner's property may not be the basis for
constitutional claims if sufficient post deprivation remedies
are available to address the claim. Hudson v. Palmer, 468 U.S.
517, 531 (1984) (citing Parratt v. Taylor, 451 U.S. 527, 541
(1981)); Davis v. New York, 311 Fed. App'x 397, 400 (2d Cir.
2009) (An alleged loss of property, “whether intentional or
negligent - will not support a due process claim redressable
under § 1983 if ‘adequate state post-deprivation remedies are
available.’ ”) (quoting Hudson, 468 U.S. 533). “New York in
fact affords an adequate post-deprivation remedy in the form
of, inter alia, a Court of Claims action.” Jackson v. Burke,
256 F.3d 93, 96 (2d Cir. 2001). Because plaintiff has access
to adequate state law remedies, he has not been deprived of
property without due process of law and therefore cannot
state a claim for relief pursuant to Section 1983. See Love v.
Coughlin, 714 F.2d 207, 208-09 (2d Cir. 1983) (per curiam);
see also Shabazz v. Pico, 994 F.Supp. 460, 473-74 (S.D.N.Y.
1998) (dismissing the plaintiff's claim that the defendants
destroyed his property in violation of his due process rights).
*11 For the reasons set forth herein, plaintiff's claims related
to property loss are dismissed 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 pursuant to Section 1983.
7. First Amendment Claims
Related to the Grievance Process
Inmates do not have a constitutional right to state grievance
programs. See Shell v. Brzeniak, 365 F.Supp.2d 362, 370
(W.D.N.Y. 2005) (“[I]nmate grievance programs created
by state law are not required by the Constitution and
consequently allegations that prison officials violated those
procedures does [sic] not give rise to a cognizable § 1983
claim.”).
Moreover, 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, plaintiff's claims related to the processing
and investigation into his grievances and complaints, 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.
8. State Law Claim
Plaintiff mentions in wholly conclusory fashion that he
asserts a claim for intentional infliction of emotional distress.
This “claim” is totally devoid of corresponding factual
information, and plaintiff does not indicate how these claims
arose, or what defendant, if any, might be personally involved
in these alleged violations. “[T]he tenet that a court must
accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by merely conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678. Similarly, a
pleading that only “tenders naked assertions devoid of further
factual enhancement” will not suffice. Id. (internal quotations
and alterations omitted). Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id.
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Because of the complete lack of factual allegations pertaining
to the state law claim, the claim is dismissed without prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a
claim upon which relief may be granted.
To the extent plaintiff seeks to advance a criminal murder
charge against defendants, see Compl. at 28, such claims
should be dismissed with prejudice because “[a]n individual
plaintiff has no private right of action to enforce state criminal
statutes.” Berger v. NYS Office for People with Developmental
Disabilities, 2016 WL 11265988, at *6 (N.D.N.Y. Nov.
8, 2016), report and recommendation adopted, 2017 WL
696686 (N.D.N.Y. Feb. 22, 2017) (citations omitted); Harper
v. New York Child Welfare Comm'rs, No. 3:12-CV-0646
(NAM/DEP), 2012 WL 3115975, at *4, n.7 (N.D.N.Y. May
14, 2012) (citing Linda R.S. v. Richard D., 410 U.S. 614, 619
(1973)). Only government prosecutors have the authority to
bring criminal charges against someone. If plaintiff believes
he has been the victim of a crime, he should contact the
appropriate law enforcement official. 5 Accordingly, plaintiff
lacks standing to request this relief. See id.; see also Ross v.
Reed, No. 1:13-CV-143, 2013 WL 1326947, at *2 (S.D. Ohio
Mar. 5, 2013) (holding that the plaintiff is not “permitted to
utilize this civil lawsuit as a vehicle to initiate any federal or ...
state criminal charges.”) (citing, inter alia, Leek v. Thomas,
No. 09–3036, 2009 WL 1298499, at *3 (D.Kan. May 8,
2009) (and cases cited therein) (dismissing on screening the
portion of a civil rights complaint requesting the initiation
of a criminal prosecution and for disciplinary action against
defendants because those matters were “beyond the authority
of this court and therefore are not proper requests for relief”)
report and recommendation adopted, 2013 WL 1314735
(S.D. Ohio Mar. 28, 2013). Therefore, this claim is dismissed
with prejudice.
IV. MOTION FOR PRELIMINARY INJUNCTION
*12 Plaintiff moves for an order directing Showers,
McDonald, Lynch, Milsap, Constigan, Glandeur, and Carr to
cease “poisoning [him].” Dkt. No. 4 at 1, 5. Plaintiff also
seeks an order directing Woods, Coffey #1, and Coffey #2
to provide medical treatment “or investigate [the] cause for
complaints,” and prevent defendants from asking questions
only [without] investigation” or directing defendants to “test
[for] infection.” Id. Plaintiff also seeks an order directing
Hutchins to “stop depriving [him] of his right to complain or
petition[.]” Id. at 5. Plaintiff also moves for an order directing
Rockwood to release plaintiff from custody. Id.
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)). “[T]his circuit has required a party seeking a
preliminary injunction to show: (a) irreparable harm and (b)
either (1) a substantial likelihood of success on the merits of
the claim, or (2) sufficiently serious questions going to the
merits to make them a fair ground for litigation and a balance
of hardships tipping decidedly toward the party requesting
the preliminary relief.” Citigroup Global Mkts., Inc. v. VCG
Special Opportunities Master Fund Ltd., 598 F.3d 30, 35, 38
(2d Cir. 2010) (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. N.Y. Civil Liberties Union v. N.Y. City
Transit Auth., 684 F.3d 286, 294 (2d Cir. 2011). Thus, 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.” Citigroup Global
Mkts., 598 F.3d at 35 n.4 (internal quotation marks omitted).
“The district court has wide discretion in determining whether
to grant a preliminary injunction.” Moore, 409 F.3d at 511.
“To prevail on a motion for preliminary injunctive relief,
the moving party must establish a relationship between the
injury claimed in the motion and the conduct giving rise to
the complaint.” Levesque v. Clinton County, No. 10-CV-787
(DNH/DEP), 2012 WL 6948779, at *11 (N.D.N.Y. Dec. 28,
2012) (citing inter alia Omega World Travel, Inc. v. Trans
World Airlines, 111 F.3d 14, 16 (4th Cir. 1997)) (holding that a
preliminary injunction may not be issued to prevent an injury
or harm which was not caused by the wrong claimed in the
underlying action); see also Allen v. Brown, No. 96-CV-1599
(RSP/GJD), 1998 WL 214418, *4 (N.D.N.Y. Apr. 28, 1998)
(denying request for injunctive relief where allegations in
application were unrelated to claims asserted in the complaint
and, thus, plaintiff “failed to establish either a likelihood
of succeeding on the merits of his underlying claim, or
sufficiently serious questions going to the merits of such claim
and a balance of hardships tipping decidedly toward” him).
As plaintiff seeks a mandatory injunction, he must meet the
higher standard and establish a clear or substantial likelihood
of success of show that extreme or very serious damage would
result in the absence of the requested relief. See Tom Doherty
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Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir.
1995). Plaintiff's motion is denied for the following reasons.
A. Relief Related to “Poisoning”
The relief that plaintiff seeks, directing an official to stop
poisoning him, is, in essence, a request that this official
obey the law. “Obey the law” injunctions are vague, do not
require a defendant to do anything more than that already
imposed by law, subject the defendant to contempt rather than
statutorily prescribed sanctions, and are not readily capable
of enforcement. As such, these injunctions are not favored.
N.L.R.B. v. Express Pub. Co., 312 U.S. 426, 435-36 (1941);
see also Rowe v. New York State Division of Budget, No. 1:11-
CV-1150 (LEK/DRH), 2012 WL 4092856, at *7 (N.D.N.Y.
Sept. 17, 2012); New York v. Shinnecock Indian Nation,
560 F.Supp.2d 186, 189 (E.D.N.Y. 2008). According to the
Second Circuit, “ ‘[u]nder Rule 65(d), an injunction must be
more specific than a simple command that the defendant obey
the law.’ ” S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d
232, 240 (2d Cir. 2001) (quoting Peregrine Myanmar Ltd. v.
Segal, 89 F.3d 41, 51 (2d Cir. 1996)).
B. Relief Related to Medical Care
*13 “[R]equest[s] for injunctive relief must be supported
by evidence, as opposed to mere allegations, showing that
the alleged irreparable harm is imminent.” Hall v. Annucci,
No. 19-CV-5521, 2021 WL 4392526, at *14 (S.D.N.Y. Sept.
24, 2021) (citing inter alia Perkins v. Rock, No. 12-CV-1269,
2013 WL 4781762, at *2 (N.D.N.Y. Sept. 5, 2013) (noting
that a plaintiff's request for preliminary injunctive relief
was appropriately denied where the plaintiff's allegations of
harm were “purely speculative” and unsupported “by any
evidence, such as exhibits, medical reports, affidavits from
other inmates, or any other proof”).
While plaintiff seeks an order directing defendants to provide
medical attention, see Dkt. No. 1, at 1, the motion lacks
any specific facts demonstrating the likelihood of future
harm. Plaintiff has not provided any documentation, exhibits,
or any other evidence to support his Eighth Amendment
deliberate medical indifference claims. Plaintiff's concerns
are “unsubstantiated” and “speculative” and cannot form
the basis for injunctive relief. Louis v. Morley, No. 22-
CV-10094., 2024 WL 4573677, at *3 (S.D.N.Y. Oct. 24,
2024) “[The court cannot simply order adequate medical
care or constitutional conditions of confinement, because
‘[u]nder Rule 65(d), an injunction must be more specific
than a simple command that the defendant obey the law.’ ”
Smith v. Halstead, No. 7:24-CV-6855, 2024 WL 4389284,
at *3 (S.D.N.Y. Oct. 3, 2024) (citation omitted). Moreover,
plaintiff's allegations related to defendants’ refusal to “test for
cancer” amount to nothing more than a disagreement over the
course of treatment, and cannot form the basis for a colorable
§ 1983 claim. See Tolbert v. Koenigsmann, No. 9:13-CV-1577
(LEK/DEP), 2016 WL 3349317, at *4 (N.D.N.Y. June 15,
2016) (denying request for preliminary injunctive relief based
upon the plaintiff's “issues” with the defendants’ medical
judgment).
On this ground, plaintiff's request is denied, without
prejudice. See Hall, 2021 WL 4392526, at *14 (noting that if
the plaintiff wishes to renew his request for injunctive relief,
he should provide the Court with medical records, affidavits,
or other documentary evidence in support of his theory that
the defendants’ actions presented a risk of irreparable harm).
C. Relief Against Hutchins
First, as noted supra, the remaining defendants are
Constigan, Glandeur, Carr, Showers, Milsap, McDonald,
Hull, Rockwood, and McCormick; and (2) Eighth
Amendment deliberate medical indifference claims against
Woods, Coffey #1, and Coffey #2. To the extent that plaintiff
seeks injunctive relief against Hutchins, or any party not
named as a defendant, that request is denied. A request for
injunctive relief against non-parties is available only under
very limited circumstances, none of which are clearly present
here. See Fed. R. Civ. P. 65(d)(2); Doctor's Associates, Inc. v.
Reinert & Duree, P.C., 191 F.3d 297, 302-03 (2d Cir. 1999);
United States v. Regan, 858 F.2d 115, 120 (2d Cir. 1988); see
also In re Rationis Enterprises, Inc. of Panama, 261 F.3d 264,
270 (2d Cir. 2001) (“A court may not grant a final, or even an
interlocutory, injunction over a party over whom it does not
have personal jurisdiction.”).
Second, with regard to plaintiff's request for an order
affording him the “right to complain or petition,” see Dkt.
No. 4 at 5, these events bear no relationship to the underlying
claims that remain in this action. See Candelaria v. Baker,
No. 00-CV-0912, 2006 WL 618576, at *3 (W.D.N.Y. Mar.
10, 2006) (“To prevail on a motion for preliminary injunctive
relief, the moving party must establish a relationship between
the injury claimed in the motion and the conduct giving rise
to the complaint.”) (internal quotation marks and citations
omitted); see also Scarborough v. Evans, No. 9:09-CV-0850
(NAM/DEP), 2010 WL 1608950, at *2 (N.D.N.Y. Apr.
20, 2010) (motion for preliminary injunction alleging use
of excessive force and denial of medical care by non-
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parties denied where complaint alleged denial of mental
health care and proper conditions of confinement); Lewis
v. Johnston, No. 9:08-CV-0482 (TJM/ATB), 2010 WL
1268024, at *3 (N.D.N.Y. Apr. 1, 2010) (denying motion
for injunctive relief based upon actions taken by staff at
Great Meadow Correctional Facility in 2010, where the
complaint alleged wrongdoing that occurred at Franklin and
Upstate Correctional Facilities in 2006 and 2007); Mitchell
v. New York State Dep't of Corr. Servs., No. 06-CV-6278,
2011 WL 5326054, at *3 (W.D.N.Y. Nov. 3, 2011) (denying
plaintiff's request for preliminary injunctive relief because
“the facts underlying the request for injunctive relief [were]
essentially unrelated to the underlying facts of the claims in
this action, except for the fact that they arise in the prison
context”); McClenton v. Menifee, No. 05-CV-2844, 2006 WL
2474872, at *17 (S.D.N.Y. Aug. 22, 2006) (denying motion
for preliminary injunction where the underlying claim “[was]
not included in the complaint and there [was] no showing that
the plaintiff [had] exhausted his administrative remedies with
respect to [that] claim”).
D. Release from Custody
*14 “Release from custody only may be obtained by a writ
of habeas corpus.” Anderson v. Connecticut Superior Ct., No.
3:01 CV 2214, 2003 WL 203152, at *3 (D. Conn. Jan. 26,
2003) (holding that “[a] state prisoner may not bring a civil
rights action in federal court under [section] 1983 to challenge
either the validity of his conviction or the fact or duration
of his confinement.”). Accordingly, this portion of plaintiff's
motion is denied.
V. CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff's IFP application (Dkt. No. 6) is
GRANTED. 6 The Clerk shall provide the superintendent
of the prison facility in which plaintiff is currently confined
with a copy of plaintiff's inmate authorization form (Dkt. No.
3) and notify the official that this action has been filed and
that plaintiff is required to pay the entire statutory filing fee
$350.00 pursuant to 28 U.S.C. § 1915; 7 and it is further
ORDERED that the Clerk shall provide a copy of plaintiff's
inmate authorization form to the Financial Deputy of the
Clerk's Office; and it is further
ORDERED that plaintiff's claims the following claims are
DISMISSED without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b)(1) for failure to
state a claim upon which relief may be granted: (1) claims
against Gallagher; (2) First Amendment claims related to
religious freedom; (2) Eighth Amendment claims related
to plaintiff's conditions of confinement at Clinton C.F.; (3)
Eighth Amendment deliberate medical indifference claims
related to plaintiff's treatment at Clinton C.F.; (4) Fourth
Amendment claims; (5) Fourteenth Amendment property
claims; (6) First Amendment access-to-court claims; (7)
claims related to the grievance process; and (8) state law
claims 8 ; and it is further
ORDERED that the following claims survive review and
require a response: (1) Eighth Amendment condition-
of-confinement claims against Constigan, Glandeur, Carr,
Showers, Milsap, McDonald, Hull, Rockwood, and
McCormick; (2) Eighth Amendment deliberate medical
indifference claims against Woods, Coffey #1, and Coffey #2;
and (3) Fourteenth Amendment claims against Biorefrence
and Harrigan; and it is further
*15 ORDERED that the Clerk of the Court shall terminate
the following defendants from the Docket Report: Kim,
King, Security Superintendent Deputy, Moores, Martuscello,
Friend, Hitts, May, OSI, Minkler, Lynch, Hutchins, and
Gallagher; and it is further
ORDERED that, upon receipt of the documents for service,
the Clerk shall issue summonses and forward them, along
with a copy of the complaint, to the United States Marshal for
service upon the defendants. The Clerk shall forward a copy
of the summons and complaint to the Office of the Attorney
General, together with a copy of this Decision and Order; and
it is further
ORDERED that defendants or counsel, shall file a response
to the complaint 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 must bear the case number assigned to
this action and 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. Any paper sent by a party to the Court or
the Clerk must be accompanied by a certificate showing
that a true and correct copy of same was served on all
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opposing parties or their counsel. Any document received
by the Clerk or the Court which does not include a proper
certificate of service will be stricken from the docket.
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. Plaintiff is also
required to promptly notify the Clerk's Office and all
parties or their counsel, in writing, of any change in his
address; the failure to do so will result in the dismissal of
his action; and it is further
ORDERED that plaintiff's motion for preliminary injunctive
relief (Dkt. No. 4) is DENIED without prejudice to renew;
and it is further
All Citations
Slip Copy, 2026 WL 177788
Footnotes
1 Section 1915(g) prohibits a prisoner from proceeding IFP where, absent a showing of “imminent danger
of serious physical injury,” a prisoner has filed three or more actions that were subsequently dismissed as
frivolous, malicious, or failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g). The
Court has reviewed plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic
Records (“PACER”) Service. See http://pacer.uspci.uscourts.gov. It does not appear from that review that
plaintiff had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) as of the date this action was
commenced.
2 Martin is not identified as a defendant in the caption or list of parties.
3 The Court is mindful of the Second Circuit's instruction that a pleading by a pro se litigant must be construed
liberally and interpreted to raise the strongest arguments that it suggests. See, e.g., Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (“On occasions too numerous to count, we have reminded
district courts” that a pro se plaintiff's pleadings must be construed liberally); Phillips v. Girdich, 408 F.3d
124, 130 (2d Cir. 2005) (“We leave it for the district court to determine what other claims, if any, [plaintiff]
has raised. In so doing, the court's imagination should be limited only by [plaintiff's] factual allegations, not
by the legal claims set out in his pleadings.”); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (“[W]e
read [a pro se litigant's] supporting papers liberally, and will interpret them to raise the strongest arguments
that they suggest.”).
4 To the extent that plaintiff intended to assert a Fourteenth Amendment claim related to property being
confiscated or discarded during the search, those claims are dismissed for the reasons set forth, infra.
5 If plaintiff believes the crime is a violation of federal law, he should contact the United States Attorney's Office
for the district in which the crime is alleged to have occurred. If plaintiff believes the crime is a violation of
state law, he should contact the police or the District Attorney's Office for the county in which the crime is
alleged to have occurred.
6 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.
7 While Section 1915 permits indigent litigants to commence a civil action in federal court without prepayment
of the filing fee, those litigants “must subsequently pay the fee, to the extent [they are] able to do so, through
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periodic withdrawals from [their] inmate accounts.” Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b);
Harris, 607 F.3d at 21).
8 Should plaintiff seek to pursue a claim dismissed without prejudice by the Court herein, he must file an
amended complaint. 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 this Court may properly exercise jurisdiction. 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.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Cruz v. Lee, Not Reported in Fed. Supp. (2016)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 1060330
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Herman CRUZ, Plaintiff,
v.
W. LEE, et. al, Defendants.
14 cv 4870 (NSR)(JCM)
|
Signed 03/15/2016
Attorneys and Law Firms
Herman Cruz, Fallsburg, NY, pro se.
Neil Shevlin, New York State Office of the Attorney General,
New York, NY, for Defendants.
OPINION & ORDER
NELSON S. ROMÁN, United States District Judge
*1 Herman Cruz (“Plaintiff”) brings this action against
defendants Superintendent Lee, Sergeant Valerdo, Sergeant
Malark, Kiernan, and Jackson (collectively, “Defendants”)
for denying him protective custody status, in violation of
his right to access the courts and to petition the government
for the redress of grievances under the First Amendment
and to be free from cruel and unusual punishment under the
Eighth Amendment. Plaintiff alleges that he was the subject
of improper retaliation by prison staff and personnel. Before
the Court is Defendants' motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). For the following reasons,
Defendants' motion to dismiss is GRANTED in part and
DENIED in part.
BACKGROUND
The following facts are derived from the § 1983 Complaint
(“Compl.” ECF No. 1) filed by Plaintiff and all relevant
attached materials. 1
On June 20, 2014, Plaintiff filed this action against
Defendants. Defendant Kiernan worked in Green Haven
Correctional Facility's (“GHCF”) Mental Health Services
Department as a member of the staff, and Defendant Jackson
worked as a Counselor in GHCF.
On May 1, 2014, Plaintiff was transferred from Upstate
Correctional Facility to GHCF. (Compl. at 3.) 2 At that
time, Plaintiff requested protection from defendants Kiernan
and Valerdo, and provided them with “enemy names.” (Id.)
Plaintiff made it known to defendants Kiernan and Valerdo
that he had previously brought lawsuits against non-defendant
employees of the Department of Corrections and Community
Supervision (“DOCCS”) for failing to place him into
protective custody. (Id.) Plaintiff told defendants Kiernan
and Valerdo about the Cruz v. Hillman case, in which
Plaintiff brought claims against non-defendants Sergeant
James Hillman and Corrections Counselor Eddie Lee for
“colluding to deny him protective custody status at [GHCF],
even though he had previously informed Defendants that he
needed protection because his life was in danger.” (Id.) See
Cruz v. Hillman, No. 01 CIV.4169 (DAB) (DF), 2002 U.S.
Dist. LEXIS 17705, 2002 WL 31045864 (S.D.N.Y. May 16,
2002). Plaintiff also told defendants Kiernan and Valerdo
about the Cruz v. Grosso case, in which Plaintiff brought
claims against non-defendant M. Grosso, an employee of
Auburn Correctional Facility, for failing to protect him,
filing a false misbehavior report, and subjecting him to
unconstitutional conditions of confinement. (Compl. at 3.)
See Cruz v. Grosso, No. 913 CV 30 (FJS) (TWD), 2015 WL
4542280 (N.D.N.Y. July 27, 2015).
*2 As to the current Complaint, Plaintiff states that
defendants Kiernan and Valerdo, in retaliation for him
filing the aforementioned lawsuits, failed to forward to their
superiors the list of “enemies” the Plaintiff provided. (Compl.
at 3.) In support of this, Plaintiff states that Kiernan told
him “don't expect any assistance from us because of the case
against Grosso.” (Id.) Plaintiff attempted to file a grievance
regarding the incident involving defendants Kiernan and
Valerdo concerning “the fact that security continues to deny
me protection after I provided names of enemies.” (Id. at
4.) However, the Grievance Clerk could not locate Plaintiff's
grievance and stated that the “staff goes through [the
grievances] first.” (Id.) Plaintiff then attempted to “appeal” by
speaking to his mental health doctor and guidance counselor
and by writing a letter to Superintendent Lee and providing
him a copy of the Hillman case. (Id.)
Following his failed attempts to resolve his issues, while
Plaintiff was at the general library, he was assaulted and
threatened by defendant Sergeant Malark, in retaliation for
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his writing a letter to Superintendent Lee. (Id. at 3.) Sergeant
Malark and two John Doe officers came to the general library
to transport Plaintiff to the Special Housing Unit (“SHU”).
(Id.) Once in the hallway, Sergeant Malark “slammed Plaintiff
against the wall” and “punched Plaintiff in the back.” (Id.)
Sergeant Malark threatened the Plaintiff, stating “you better
not call witnesses or say anything to the Nurse” and advised
him that he would not be receiving protection. (Id.) Finally,
Plaintiff was issued a misbehavior report by Sergeant Malark
and was placed in SHU. (Id. at 3, 5.)
After Sergeant Malark issued Plaintiff a misbehavior
report, Plaintiff asked his counselor, Defendant Jackson, for
assistance with regard to a disciplinary hearing and provided
her with a copy of the Hillman case. (Id. at 3.) Defendant
Jackson refused to assist the Plaintiff and stated, as her reason
why, “we have a code.” (Id.)
In sum, the Plaintiff claims that he was (1) denied placement
into protective custody; (2) assaulted by Sergeant Malark; (3)
given a false misbehavior report by Sergeant Malark; and (4)
denied any assistance in preparing for a disciplinary hearing
from Defendant Jackson (in connection with the misbehavior
report he had received).
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) states that a party
may file a motion to dismiss for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order
to survive a 12(b)(6) motion to dismiss, a complaint must
include “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 (2009) (quoting 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.” Id. (citing Twombly, 550 U.S. at
556).
When there are well-pleaded factual allegations in the
complaint, “a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Iqbal, 556 U.S. at 679. The court must “take
all well-plead factual allegations as true, and all reasonable
inferences are drawn and viewed in a light most favorable
to the plaintiff[ ].” Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.
1996). However, the presumption of truth does not extend
to “legal conclusions, and threadbare recitals of the elements
of the cause of action.” Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009) (quoting Iqbal, 556 U.S. at 678) (internal quotation
marks omitted). A plaintiff must provide “more than labels
and conclusions” to show he is entitled to relief. Twombly,
550 U.S. at 555.
Pro se pleadings are held to “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007). They are construed “liberally”
and interpreted “to raise the strongest arguments that they
suggest.” Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)
(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Additionally, this Court “may consider factual allegations
made by a pro se plaintiff in opposition papers and other
additional materials.” Baskerville v. Blot, 224 F. Supp. 2d 723
(S.D.N.Y. 2002). However, pro se status “does not exempt a
party from compliance with relevant rules of procedural and
substantive law.” Boddie v. N.Y. State Div. of Parole, 285 F.
Supp. 2d 421, 426 (S.D.N.Y. 2003) (quoting Traguth v. Zuch,
710 F.2d 90, 95 (2d Cir. 1983)).
DISCUSSION
I. Exhaustion of Administrative Remedies
*3 Under the Prison Litigation Reform Act of 1995
(“PLRA”), “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title ... 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). “The PLRA's 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.'”
Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) (quoting
Porter v. Nussle, 534 U.S. 516, 532 (2002)).
Exhausting all remedies “means using all steps that the
agency holds out, and doing so properly (so that the agency
addresses the issues on the merits).” Washington v. Chaboty,
No. 09 CIV. 9199 PGG, 2015 WL 1439348, at *6 (S.D.N.Y.
Mar. 30, 2015) (quoting Hernandez v. Coffey, 582 F.3d
303, 305 (2d Cir. 2009)) (internal quotation marks and
citations omitted). “[B]ecause 'it is the prison's requirements,
and not the PLRA, that define the boundaries of proper
exhaustion [,] ... [t]he exhaustion inquiry ... requires that [the
court] look at the state prison procedures and the prisoner's
grievance to determine whether the prisoner has complied
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with those procedures.” Espinal v. Goord, 558 F.3d 119, 124
(2d Cir. 2009) (quoting Jones v. Bock, 549 U.S. 199, 218
(2007)). A plaintiff must invoke all available administrative
mechanisms, including appeals, “through the highest level for
each claim.” Varela v. Demmon, 491 F. Supp. 2d 442, 447
(S.D.N.Y. 2007). See also Veloz v. New York, 339 F. Supp. 2d
505, 514 (S.D.N.Y. 2004). The defendants bear the burden of
demonstrating that Plaintiff's claim is not exhausted. Key v.
Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009). Where
a prisoner has failed to exhaust some, but not all, of the
claims included in the complaint, the PLRA does not require
dismissal of the entire complaint. Tafari v. Hues, 539 F.
Supp. 2d 694, 697 (S.D.N.Y. 2008) (citing Jones, 549 U.S. at
219-24). Instead, the court dismisses the unexhausted claims
and proceeds to adjudicate the exhausted claims. Jones, 549
U.S. at 224.
A person detained or incarcerated at a DOCCS facility
must exhaust all of the steps of the DOC Inmate Grievance
Resolution Program (“IGRP”). See Robinson v. Henschel, No.
10 Civ. 6212 (PGG), 2014 WL 1257287, at *10 (S.D.N.Y.
Mar. 26, 2014) (“the PLRA requires complete exhaustion
in accordance with the administrative procedures within
[DOCCS]”) (internal quotation marks and citations omitted).
The IGRP provides a three-tiered process for adjudicating
inmate complaints: (1) the prisoner files a grievance with the
IGRC, (2) the prisoner may appeal an adverse decision by the
IGRC to the superintendent of the facility, and (3) the prisoner
then may appeal an adverse decision by the superintendent
to the Central Office Review Committee (“CORC”). See
Espinal, 558 F.3d at 125 (citing N.Y. Comp. Codes R. &
Regs., tit. 7, § 701.7 (1999)).
The Second Circuit has recognized three situations in which
a Plaintiff is not required to satisfy the PLRA exhaustion
requirement. Hemphill v. New York, 380 F.3d 680, 686 (2d
Cir. 2004). See also Morrison v. Parmele, 892 F. Supp. 2d
485, 488 (W.D.N.Y. 2012), aff'd, 2013 WL 3214625 (2d Cir.
2013). The failure to exhaust administrative remedies may
be excused or Plaintiff's claim may be deemed exhausted:
(1) when administrative remedies are not available to the
prisoner, (2) when the defendants waive the defense by failing
to raise or preserve it, or acted in such a manner that they are
estopped from raising it, or (3) when special circumstances
exist to justify the prisoner's failure to comply with the
exhaustion requirement. Hemphill, 380 F.3d at 686.
*4 With regard to situation (1), to be “available” under
the PLRA, a remedy must afford “the possibility of some
relief for the action complained of.” Abney v. McGinnis, 380
F.3d 663, 667 (2d Cir. 2004). When Plaintiff lacks available
remedies, the PLRA's exhaustion requirement is inapplicable.
Hemphill, 380 F.3d at 686. In some circumstances, a
defendant's behavior will render an administrative remedy
unavailable. Sloane v. Mazzuca, No. 04-CV-8266, 2006 WL
3096031 at *6 (S.D.N.Y. Oct. 31, 2006) (citing Hemphill,
380 F.3d at 687). For example, the exhaustion requirement
is waived “in situations where prison officials fail to timely
advance the inmate's grievance or otherwise prevent him
from seeking his administrative remedies.” Abney, 380 F.3d
at 667 (citation omitted). See also Hemphill, 380 F.3d
at 688-89 (determining that threats from guards which
prevent the filing of a grievance would make the remedy
unavailable) (citing Ziemba v. Wezner, 366 F.3d 161, 162
(2d Cir. 2004)); Santiago v. Westchester Cty., No. 13 CIV.
1886 (LGS), 2014 WL 2048201, at *3 (S.D.N.Y. May 19,
2014) (holding that a factual inquiry is required where the
Complaint has sufficiently alleged that if Plaintiff failed to
exhaust administrative remedies, the failure resulted because
administrative remedies may not have been “available” to
him).
With regards to estoppel—situation (2)—a prisoner may
be excused from exhausting his administrative remedies
when “defendants took affirmative action to prevent him
from availing himself of grievance procedures.” Amador,
655 F.3d at 103 (citing Ruggiero v. County of Orange, 467
F.3d 170, 178 (2d Cir. 2006)). Such “affirmative action”
includes “verbal and physical threats of retaliation, physical
assault, denial of grievance forms or writing implements, and
transfers.” Id. (internal citations omitted). See also Ziemba,
366 F.3d at 162-63 (estopping defendants where they had
prevented exhaustion of remedies by beating and threatening
the inmate, denying him grievance forms, and transferring
him to another prison).
Finally, in situation (3), the Court must consider any special
circumstances that may have frustrated an inmate's grievance.
Hemphill, 380 F.3d at 686. Generally, when procedural
requirements are not clear, are misleading, or are so trivial
as to make exhaustion an ordeal, a prisoner's failure to
comply may not be fatal to his claims. See generally Giano,
380 F.3d at 676; Hemphill, 380 F.3d at 689-90 (2d Cir.
2004). For example, in Giano, the Second Circuit determined
that “there are certain 'special circumstances' in which,
though administrative remedies may have been available
and though the government may not have been estopped
from asserting the affirmative defense of non-exhaustion, the
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prisoner's failure to comply with administrative procedural
requirements may nevertheless have been justified.” Giano,
380 F.3d at 676 (citing Berry v. Kerik, 366 F.3d 85, 87-88 (2d
Cir. 2004)). The court in Giano held that plaintiff's reasonable
interpretation of DOCCS' regulations constituted the “special
circumstances” justifying his failure to exhaust. Giano, 380
F.3d at 676. Specifically, the inmate took a disciplinary appeal
when, under a correct interpretation of the rules, he should
have filed a grievance. Id. The court excused his failure,
holding that prison rules “do not differentiate clearly” and that
therefore the inmate was excused from precise compliance.
Id. at 679.
As an initial matter, it is clear from the face of the Complaint
that Plaintiff has not exhausted claims 2-4: that he was
assaulted, given a false behavior report, and denied assistance
at his disciplinary hearing. Plaintiff has not alleged that
he filed a grievance or even that he attempted to file a
grievance with regards to any of these claims. Therefore,
these claims must be dismissed for Plaintiff's failure to
exhaust his administrative remedies.
However, with regards to claim 1—that Plaintiff was not
placed into protective custody—Plaintiff asserts that he filed
a grievance and made efforts to appeal to the superintendent.
Thus, it is not apparent on the face of the Complaint that
Plaintiff failed to exhaust his administrative remedies with
regard to his retaliation and denial of protection claim.
(See Compl., at 5.) Although Plaintiff did not complete
the IGRP three-step grievance procedure, and thus did not
technically exhaust his administrative remedies, Plaintiff
may be excused from fully complying with the PLRA
requirement of exhaustion because (1) remedies may have
been unavailable to him, and (2) Defendants may be estopped
from asserting the exhaustion defense. See Hemphill, 380 F.3d
at 686. See also Amador, 655 F.3d at 102.
*5 Administrative remedies may not have been available to
the Plaintiff because Plaintiff was unable to file a grievance.
Though Plaintiff attempted to file a grievance with regards
to his retaliation claim that he was not placed into protective
custody, the grievance was never entered into the IGRP
system. (Compl. at 5.) When Plaintiff inquired about his
grievance, the Grievance Clerk stated that it “could not
be located.” (Id.) Plaintiff then attempted to “appeal” by
writing to a Counselor, speaking to a Mental Health Doctor,
and writing to Superintendent Lee, because, in his opinion,
these were the only administrative remedies available to
him. (Id. at 3.) See also Hale v. Rao, 768 F. Supp. 2d
367 (N.D.N.Y. 2011) (holding that a plaintiff's failure to
exhaust his administrative remedies will be excused when a
member of prison staff throws out a grievance and threatens
to assault a plaintiff if he attempts to utilize the grievance
process). Accepting all allegations as true, it is clear that
Plaintiff attempted to grieve his protective custody claim.
When Plaintiff reasonably believed that his grievances were
not being filed, he tried to grieve his complaints by writing
letters of appeal. Further, in light of the fact that Plaintiff has
filed numerous grievances in the past, he is clearly familiar
with the grievance process and aware of the steps he must take
before availing himself of the Court's remedies. Therefore, the
administrative grievance process may have been unavailable
to Plaintiff, and the Court cannot dismiss his retaliation/denial
of protection claim for failure to exhaust.
Additionally, Defendants may be estopped from asserting a
non-exhaustion defense because their conduct—refusing to
file Plaintiff's grievance that was of a serious nature—may
have prevented the Plaintiff from exhausting all remedies.
See Ziemba, 366 F.3d at 162-63 (estopping defendants from
raising failure-to-exhaust-defense where they had prevented
exhaustion of remedies by beating and threatening the inmate,
denying him grievance forms, and transferring him to another
prison). Plaintiff alleges not only that the Grievance Clerk
refused to file or intentionally misplaced his grievance but
also that Defendants assaulted him because he attempted
to file a grievance. Therefore, assuming that Plaintiff's
allegations are true—as the Court must at this stage of
the litigation—Defendants may be estopped from asserting
a non-exhaustion defense pursuant to the second Hemphill
exception. Hemphill, 380 F.3d at 686; Samuels v. Fischer,
et. al., No. 13-CV-8287 (KMK), 2016 WL 827781, at
*19 (S.D.N.Y. Mar. 2, 2016) (holding that it would be
premature to dismiss Plaintiff's claims for failure to exhaust
his administrative remedies where Plaintiff's non-exhaustion
is not clear from the face of the Amended Complaint and
where Plaintiff argued that his “failed attempt to file a
second grievance can be attributed to [defendants refusing]
to provide [P]laintiff with ... grievance forms.”). See also
McClinton v. Connolly, No. 13-CV-2375 (KMW) (DCF),
2014 WL 5020593, at *3 (S.D.N.Y. Oct. 8, 2014) (defendants
may be estopped where Plaintiff claimed that the “Inmate
Grievance Coordinator refused to file [his] grievance of
improper medical care”); Rivera v. Pataki, No. 04–CV–1286,
2005 WL 407710, at *10-11 (S.D.N.Y. Feb. 7, 2005) (citing
Hemphill, 380 F.3d at 688-89) (holding that defendants were
estopped from asserting their non-exhaustion defense because
defendants refused to allow plaintiff to file his grievance).
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Therefore, Plaintiff's claim of retaliation and denial of
protection cannot be dismissed at this stage of the litigation,
as he may be excused from exhausting his administrative
remedies with regards to this claim.
II. Personal Involvement—Defendant Lee
Defendants assert that Plaintiff's claim against Defendant
Lee should be dismissed because Plaintiff failed to allege
Defendant Lee was personally involved in the alleged
wrongdoing. Section 1983 imposes liability for “conduct
which 'subjects, or causes to be subjected' the complainant
to a deprivation of a right secured by the Constitution
and laws.” Rizzo v. Goode, 423 U.S. 362, 370-71 (1976).
Accordingly, “personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.” McKinnon v. Patterson, 568 F.2d
930, 934 (2d Cir.1977). A supervisory defendant may be
personally involved in a constitutional deprivation within
the meaning of 42 U.S.C. § 1983 if he or she: (1) directly
participated in the violation; (2) failed to remedy the violation
after learning of it through a report or appeal; (3) created
a custom or policy fostering the violation or allowed the
custom or policy to continue after learning of it; or (4) was
grossly negligent in supervising subordinates who caused the
violation, including where he or she directly participated in
the infraction and where, after learning of the violation, failed
to remedy the wrong. Williams v. Smith, 781 F.2d 319, 323-24
(2d Cir. 1986) (internal citations omitted). See also Morgan
v. Ward, No. 14 Civ. 7921, 2016 WL 427913, at *6 (S.D.N.Y.
Feb. 2, 2016) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995)); Lloyd v. City of New York, 43 F. Supp. 3d 254,
266 (S.D.N.Y. 2014); Ramey v. Perez, No. 13 Civ. 17, 2014
WL 407097, at *4 (S.D.N.Y. Jan. 31, 2014).
*6 In the instant case, Plaintiff alleges that he wrote a letter
of “appeal” to Superintendent Lee regarding the retaliatory
failure to place him into protected custody and enclosed a
copy of the Hillman case. (See Compl. at 3-4.) Plaintiff states
that Superintendent Lee did not inquire about whether the
Plaintiff had problems, but rather merely directed the staff
“to write him up and take him to SHU.” (See Plaintiff's
Memorandum of Law in Opposition to Defendant's Motion
to Dismiss, ECF No. 40, at 9.) Construing Plaintiff's pro
se complaint liberally, as we must, Plaintiff sufficiently
alleges that Superintendent Lee, after learning of a violation
through Plaintiff's letter of appeal, failed to remedy the
wrong. See United States ex rel. Larkins v. Oswald, 510
F.2d 583, 589 (2d Cir. 1975) (holding the New York State
Corrections Commissioner liable for money damages along
with the prison warden when the former was “chargeable
with knowledge” of the cruel and unusual punishment of one
prisoner).
The Defendants argue that "the mere receipt of a letter is not
sufficient to establish the personal liability of a supervisor
under Sealy v. Giltner, 116 F.3d 47, 51 (2d Cir. 2007)
and Lloyd, 43 F. Supp. 3d at 268. In Sealy, the Court
held that the plaintiff did not produce sufficient evidence
of personal involvement to survive a motion for summary
judgment where the plaintiff wrote a letter of appeal to
the commissioner, and the commissioner referred the appeal
letter to a subordinate for determination. Sealey, 116 F.3d at
51. Similarly, in Lloyd, the supervisory defendant received
the letter and forwarded it to “the appropriate unit for
investigation.” Lloyd, 43 F. Supp. 3d at 268. As the Lloyd
court explained, “[c]ourts have consistently held that, if an
official receives a letter from an inmate and passes it on to
a subordinate for response or investigation, the official will
not be deemed personally involved with respect to the subject
matter of the letter.” Id. (collecting cases) (internal quotation
marks omitted). In the instant case, Plaintiff alleges that he
wrote a letter of appeal to Defendant Lee and that he received
no response. There is no indication from Plaintiff's allegations
that Defendant Lee took any steps to resolve the issue.
Therefore, Plaintiff sufficiently alleges personal involvement
of Defendant Lee at this stage of the litigation, and his claim
for retaliatory failure to place Plaintiff into protective custody
against Defendant Lee cannot be dismissed.
III. First Amendment Retaliation
In order to sustain a First Amendment retaliation claim under
Section 1983, a prisoner must demonstrate the following: “(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 and the adverse action.” Espinal, 558 F.3d at 128
(2d Cir. 2009) (citing Gill v. Pidlypchak, 389 F.3d 379, 380
(2d Cir. 2004)) (quoting Dawes v. Walker, 239 F.3d 489,
492 (2d Cir. 2001), overruled on other grounds, Swierkiewicz
v. Sorema N.A., 534 U.S. 506 (2002)). Plaintiff clearly
engaged in constitutionally protected conduct, as filing and
prosecuting a federal lawsuit is a constitutionally protected
activity. See Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988).
Plaintiff alleges that, in retaliation for filing these lawsuits
(i.e. the protected activity), Defendants refused to place
him into protective custody after Plaintiff provided them
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with the names of his enemies. In order to adequately
plead an “adverse action,” Plaintiff must allege that he was
subject to “retaliatory conduct 'that would deter a similarly
situated individual of ordinary firmness from exercising ...
constitutional rights.'” Gill, 389 F.3d at 381 (internal citations
omitted). The Second Circuit has explained that fear is a
key aspect in whether an inmate has suffered adverse action,
specifically when fear is used as a means to stifle a prisoner's
ability or desire to file lawsuits or grievances. See Morales
v. Mackalm, 278 F.3d 126, 131-32 (2d Cir. 2002) (reversing
the dismissal of a complaint alleging that the transfer of
prisoner to a psychiatric facility was an adverse action taken
in retaliation for filing a grievance). Plaintiff alleges that
Defendants' denial of protective custody, or even the denial of
the submission of an accurate protective custody application,
constitutes an adverse action because Plaintiff feared for his
safety without custodial protection. (See Compl. at 6 (“I could
be killed”).) It cannot be said, as a matter of law, that this
fear would not deter a similarly situated individual from
filing further lawsuits or grievances. Therefore, Plaintiff has
sufficiently alleged an adverse action.
*7 Defendants dispute whether Plaintiff has alleged a
causal connection between the lawsuits and Defendants'
denial of protective custody. “Proof of causal connection
can be established indirectly by showing that the protected
activity was followed closely by discriminatory treatment ...
or through other evidence such as disparate treatment of
fellow employees who engaged in similar conduct, or directly
through evidence of retaliatory animus directed against a
plaintiff by the defendant.” DeCintio v. Westchester County
Med. Ctr., 821 F.2d 111, 116 (2d Cir. 1987) (internal citations
omitted). However, as the Second Circuit recently explained:
[P]risoner retaliation claims are
easily fabricated, and ... pose a
substantial risk of unwarranted
judicial intrusion into matters
of general prison administration.
Accordingly, while we have held
that temporal proximity between
protected conduct and an adverse
action constitutes circumstantial
evidence of retaliation, we have
consistently required some further
evidence of retaliatory animus
before permitting a prisoner to
proceed to trial on a retaliation
claim.
Faulk v. Fisher, 545 F. App'x 56, 58 (2d Cir. 2013) (internal
citations and quotation marks omitted). With regards to
temporal proximity, the Second Circuit “has not drawn a
bright line to define the outer limits beyond which a temporal
relationship is too attenuated to establish a causal relationship
between the exercise of a federal constitutional right and
an allegedly retaliatory action.” Gorman-Bakos v. Cornell
Coop. Extension, 252 F.3d 545, 554 (2d Cir. 2001). Compare
Hollander v. American Cyanamid Co., 895 F.2d 80, 85-86
(2d Cir. 1990) (finding a lack of evidence that an adverse
action, taken three months after the plaintiff's complaint, was
in response to the plaintiff's protected activity) with Grant
v. Bethlehem Steel Corp., 622 F.2d 43, 45-46 (2d Cir. 1980)
(finding that the lapse of eight months between a complaint
and retaliatory act indicated a causal connection).
In the present case, Plaintiff's earlier federal lawsuits were
filed in 2002 and 2013, and the alleged adverse action
occurred in May of 2014. As to the first federal lawsuit
—Cruz v. Hillman, filed on September 19, 2000 and decided
on May 16, 2002—a time period of 12-14 years between
the protected activity and retaliation (the present complaint
was filed May 1, 2014) is too lengthy and thus the temporal
relationship here is too attenuated to establish a causal
connection. See Cruz v. Hillman, 2002 U.S. Dist. LEXIS
17705, 2002 WL 31045864. See also Shaw v. McDonald, No.
14 CV 5856 (NSR), 2015 WL 8484570, at *6 (S.D.N.Y. Dec.
8, 2015) reconsideration denied, No. 14-CV-5856 (NSR),
2016 WL 828131 (S.D.N.Y. Feb. 22, 2016) ("[w]ithout any
alleged explanation for the delay, a one year gap is too
attenuated to establish a causal relationship.). With regards
to the second lawsuit, however, Plaintiff has adequately
alleged a causal connection. Cruz v. Grosso was filed on
January 9, 2013 and decided on July 27, 2015. See Cruz v.
Grosso, 2015 WL 4542280. The Grosso case was pending
—and the protected activity was therefore ongoing—when
the alleged adverse action occurred. Defendants argue that
no causal connection exists because Grosso did not involve
any of the Defendants here or even any of the staff at
GHCF. While this may be factually true, Plaintiff has also
alleged that (1) he notified Defendants of the Grosso case,
(2) Defendant Kiernan stated that Plaintiff would not get
protective custody “because of the case against Grosso,” and
(3) Defendant Jackson refused to help Plaintiff and stated as
her reason, “we have a code.” (Compl. at 3-4.) Therefore,
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the close temporal proximity taken together with Defendants'
knowledge of the protected activity and statements tending
to demonstrate a retaliatory motive sufficiently establish a
causal connection. Therefore, the Court declines to dismiss
Plaintiffs First Amendment Retaliation Claim.
CONCLUSION
*8 For the foregoing reasons, the Defendants' motion
to dismiss is GRANTED in part and DENIED in part.
Defendants' motion is denied with respect to Plaintiffs
retaliation claim-that Defendants denied him protective
custody in retaliation for his filing of federal lawsuits.
Plaintiffs remaining claims, however, are dismissed.
Defendant shall have until 60 days from the date of this
Order to file responsive pleadings on the remaining claim. An
initial in-person case management and scheduling conference
pursuant to Fed. R. Civ. P. 16 is scheduled for May 20,
2016, at 10:30 a.m., at the United States Courthouse, 300
Quarropas Street, Courtroom 218, White Plains, New York
10601. Plaintiff shall appear via telephone. The parties shall
also complete a Civil Case Discovery Plan and Scheduling
Order and bring it to the conference. The Court respectfully
directs the Clerk to terminate the motion at ECF No. 36.
SO ORDERED:
All Citations
Not Reported in Fed. Supp., 2016 WL 1060330
Footnotes
1 As a pro se Plaintiff, Cruz is subject to a more liberal pleading standard, which requires that the Court consider
factual allegations in Cruz's opposition papers to supplement allegations in his Complaint. See Collins v.
Goord, 438 F.Supp.2d 399, 403 n. 1 (S.D.N.Y. 2006); Fox v. Fischer, No. 04 Civ. 6718, 2005 WL 1423580,
at *2 n. 1 (S.D.N.Y. June 14, 2005); Verley v. Goord, No. 02 Civ. 1182, 2004 WL 526740, at *5 (S.D.N.Y.
Jan. 23, 2004). Therefore, the Court will consider facts alleged in the Complaint and opposition papers as
long as there is no disagreement between the documents.
2 Page number references in the Complaint refer to ECF page numbers to avoid confusion.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Doe v. Bank of America, N.A., --- F.Supp.3d ---- (2026)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Blue-Striped Flag
Appeal Filed by Doe v. The Bank of New York Mellon Corporation, 2nd
Cir., March 23, 2026
2026 WL 380385
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jane DOE, individually and on behalf
of all others similarly situated, Plaintiff,
v.
BANK OF AMERICA, N.A., Defendant.
Jane Doe, individually and on behalf of
all others similarly situated, Plaintiff,
v.
The Bank of New York Mellon Corp., Defendant.
25-cv-8520 (JSR), 25-cv-8525 (JSR)
|
Signed February 11, 2026
Synopsis
Background: Two pseudonymous alleged victims brought
putative class actions in federal court against two large
financial institutions, a bank and a banking corporation,
alleging that the institutions knowingly participated in and
benefited from a sex trafficking enterprise by processing
suspicious financial transactions and failing to file required
regulatory reports, asserting claims under the Trafficking
Victims Protection Act (TVPA) and for negligence under
New York law. After the two putative class actions were
consolidated for pretrial proceedings, the United States
District Court for the Southern District of New York granted
victims leave to amend their complaints and the institutions
filed motions to dismiss.
Holdings: The District Court, Jed S. Rakoff, J., held that:
[1] victim adequately alleged bank participated in sex-
trafficking venture, as required to state claim for participation
liability under TVPA;
[2] victim failed to adequately allege banking corporation
participated in sex-trafficking venture, as required to state
claim for participation liability under TVPA;
[3] victim adequately alleged bank had knowledge of sex-
trafficking venture, as required to state claim for participation
liability under TVPA;
[4] victim adequately alleged bank knowingly benefited
from sex-trafficking venture, as required to state claim for
participation liability under TVPA;
[5] victims failed to state claims for direct perpetrator liability
under TVPA against financial institutions;
[6] victim sufficiently stated claim against bank for
obstructing enforcement of TVPA;
[7] victim failed to sufficiently state claim against banking
corporation for obstructing enforcement of TVPA; and
[8] New York's three-year limitations period for actions to
recover damages for negligence was not tolled under doctrine
of equitable estoppel.
Motion granted in part and denied in part.
Procedural Posture(s): Motion to Dismiss for Failure to
State a Claim.
West Headnotes (27)
[1] Records Material released in discovery
District court would exercise its unfettered
discretion to disclose information in suspicious
activity reports and related materials filed by
banks with federal regulators, disclosed under
regulators' exemptive authority in two putative
class actions asserting claims under Trafficking
Victims Protection Act (TVPA), in connection
with any motion, application, or proceeding
resulting in order and/or decision by court
under disclosure agreement between banks and
plaintiffs; governmental agencies were made
aware of agreement giving court unfettered
discretion to disclose information in reports,
and plaintiffs' amended complaints, which court
considered in ruling on banks' motions to
dismiss, referred to unredacted forms of reports
and related materials. 18 U.S.C.A. § 1591 et seq.
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More cases on this issue
[2] Federal Civil Procedure Matters
considered in general
Because a motion to dismiss for failure to state
a claim assesses the legal feasibility of the
complaint, but does not weigh the evidence that
might be offered to support it, courts may only
consider materials beyond the four corners of a
pleading in certain limited circumstances. Fed.
R. Civ. P. 12(b)(6).
[3] Federal Civil Procedure Matters
considered in general
For purposes of weighing a motion to dismiss for
failure to state a claim, a pleading is deemed to
include any written instrument attached to it as an
exhibit, materials incorporated in it by reference,
and documents that, although not incorporated
by reference, are integral to the complaint. Fed.
R. Civ. P. 12(b)(6).
[4] Federal Civil Procedure Matters
considered in general
Summary Judgment Motion to dismiss
On a motion to dismiss for failure to state
a claim, a court must either exclude extrinsic
materials from its consideration or convert the
motion to dismiss into a motion for summary
judgment and provide the parties with an
opportunity to conduct relevant discovery and
submit supporting evidence. Fed. R. Civ. P. 12(b)
(6), 12(d).
[5] Human Trafficking and
Slavery Benefiting from participation in
trafficking venture
Claim that financial institutions were
participants in, and knowingly benefited from,
what they knew or should have known was
sex trafficking venture under Trafficking Victims
Protection Act (TVPA) involves three elements:
first, that the defendant participated in a
commercial sex trafficking venture; second, that
the defendant knew or should have known that
the venture either involved the perpetrator's use
of force, the threat of force, fraud, or coercion
to cause the victims to participate in sex or that
the venture involved sex with victims who were
under the age of 18; and third, that the defendant
benefited from its participation in the venture. 18
U.S.C.A. § 1591(a)(2).
[6] Human Trafficking and
Slavery Benefiting from participation in
trafficking venture
Participation, for purposes of a claim for
participating in sex trafficking venture under
Trafficking Victims Protection Act (TVPA),
requires allegations of specific conduct that
furthered the sex trafficking venture, that is,
allegations of conduct that amounts to more
than just passive facilitation and, instead, reaches
some level of active engagement. 18 U.S.C.A. §
1595(a).
[7] Human Trafficking and
Slavery Benefiting from participation in
trafficking venture
In the banking context, “active engagement,”
for purposes of a claim for participating in sex
trafficking venture under Trafficking Victims
Protection Act (TVPA), requires a financial
institution to provide more than its usual routine
services. 18 U.S.C.A. § 1595(a).
[8] Human Trafficking and
Slavery Benefiting from participation in
trafficking venture
Alleged victim of account holder's sex-
trafficking operation adequately alleged that
bank participated in sex-trafficking venture,
as required to state claim against bank for
participation liability under Trafficking Victims
Protection Act (TVPA) in putative class action;
victim alleged bank gave preferential treatment
to her at account holder's request, providing her
with premier services and facilitating transfer of
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large amounts into and out of her account, even
though bank had reason to know she could not
earn legitimate income in United States, and that
account holder had been convicted of sex crimes
involving underage girls, that bank provided
non-routine services to account holder and
his associates, and intentionally delayed filing
suspicious activity reports regarding activity. 18
U.S.C.A. § 1595(a)(2).
[9] Human Trafficking and Slavery Pleading
Alleged victim of account holder's sex-
trafficking operation failed to adequately allege
that banking corporation participated in sex-
trafficking venture, as required to state claim
against bank for participation liability under
Trafficking Victims Protection Act (TVPA) in
putative class action; corporation functioned
as correspondent or clearing bank, complaint
did not sufficiently allege that corporation
provided non-routine services to account holder
or his associations, that line of credit extended
by corporation's subsidiary was non-routine,
that any employee helped structure holder's
accounts or transfers or communicated with
holder, or that corporation processed transactions
with knowledge payments would facilitate sex
trafficking. 18 U.S.C.A. § 1591(a)(2).
[10] Human Trafficking and
Slavery Benefiting from participation in
trafficking venture
Alleged victim of account holder's sex-
trafficking operation adequately alleged that
bank had knowledge of account holder's sex-
trafficking venture, as required to state claim
against bank for participation liability under
Trafficking Victims Protection Act (TVPA) in
putative class action, by alleging bank recklessly
disregarded public media reports regarding gross
improprieties and failed to engage in due
diligence about them, disregarded numerous
red flags associated with accounts such as
unexplained monthly payments to address used
to house trafficking victims, large transfers
into and out of account allegedly owned by
impecunious young woman, large payments to
account holder, and that at least one bank
employee had direct personal knowledge of
trafficking that could be imputed to bank. 18
U.S.C.A. § 1595(a)(2).
[11] Human Trafficking and
Slavery Knowledge or Intent of Accused
In civil action under Trafficking Victims
Protection Act (TVPA), for an individual who
is a victim under TVPA to show that an
alleged participant in the violation “should
have known” that they were benefiting from
participation in sex-trafficking, as required to
prove participation, the individual needs to show
negligence, rather than reckless disregard, on the
part of the participant. 18 U.S.C.A. § 1595(a).
[12] Human Trafficking and
Slavery Knowledge or Intent of Accused
To prove civil liability under the Trafficking
Victims Protection Act (TVPA), a defendant's
knowledge or reckless disregard of the fact that
force, fraud, or coercion was used in a sex-
trafficking venture that it is alleged to have
participated in does not require that the defendant
know or recklessly disregard the fact that the
force, fraud, or coercion was used with respect to
plaintiff personally. 18 U.S.C.A. § 1591(a)(2).
[13] Human Trafficking and
Slavery Benefiting from participation in
trafficking venture
Alleged victim of account holder's sex-
trafficking operation adequately alleged that
bank knowingly benefited from its participation
in account holder's sex-trafficking venture,
as required to state claim against bank for
participation liability under Trafficking Victims
Protection Act (TVPA) in putative class action,
by alleging bank knowingly received interest,
commissions, service fees, and other financial
benefits from servicing account holder and his
associates, bank knew it would lose account
holder's business, as well as that of his associates,
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if it flagged any suspicious transactions, and thus
bank deliberately failed to monitor their account
activity or file suspicious activity reports. 18
U.S.C.A. § 1591(a)(2).
[14] Human Trafficking and
Slavery Benefiting from participation in
trafficking venture
Allegations that a bank, or other alleged
participant, knowingly received revenue from
its participation in generally assisting a venture
that it knew, or should have known, involved
sex trafficking are sufficient to satisfy element
of a Trafficking Victims Protection Act (TVPA)
participation claim requiring a plaintiff to allege
that a defendant knowingly benefited from its
participation in a sex trafficking venture. 18
U.S.C.A. § 1595(a).
[15] Federal Civil Procedure Motion and
proceedings thereon
Alleged victims of account holder's sex-
trafficking operation effectively abandoned their
claims against financial institutions for direct
perpetrator liability under Trafficking Victims
Protection Act (TVPA) in purported class actions
consolidated for pretrial purposes, although they
included claims in their amended complaints,
where their supplemental briefs in response to
institutions' motions to dismiss did not defend the
merits of their claims or even mention the claims.
18 U.S.C.A. §§ 1591(a)(1), 1595(a).
[16] Human Trafficking and Slavery Pleading
Alleged victims of account holder's sex-
trafficking operation failed to state claims against
financial institutions for direct perpetrator
liability under Trafficking Victims Protection
Act (TVPA) in purported class actions
consolidated for pretrial purposes, even had
they not effectively abandoned direct perpetrator
claims, where victims alleged claims should
survive because they had alleged at least one
violation of TVPA, and civil remedy provision
of TVPA did not distinguish between different
violations, and allowing a claim to remain in a
case merely because victims may have plausibly
asserted a different violation of same statute
would undermine purpose of rule requiring
dismissal for failure to state a claim. 18 U.S.C.A.
§§ 1591(a)(1), 1595(a); Fed. R. Civ. P. 12(b)(6).
[17] Human Trafficking and Slavery Aiding
and abetting
The Trafficking Victims Protection Act (TVPA)
does not provide civil liability for aiding and
abetting; such liability should not be inferred
when a statute does not expressly provide for
it, and there is no indication that Congress,
when it enacted the TVPA's civil cause of
action, intended to create liability for aiding and
abetting. 18 U.S.C.A. §§ 2, 1595(a).
[18] Torts Particular cases
Alleged victim of account holder's sex-
trafficking operation sufficiently stated claim
against bank for obstructing enforcement of
Trafficking Victims Protection Act (TVPA) in
purported class action; alleged victim claimed
that bank knew of investigation into account
holder's sex-trafficking operation and that it
intentionally and deliberately failed to file timely
suspicious activity reports, including in and after
year existence of investigation became public. 18
U.S.C.A. §§ 1591(d), 1595.
1 Case that cites this headnote
[19] Torts Obstruction of or Interference with
Legal Remedies, in General
To assert a claim for obstruction under the
Trafficking Victims Protection Act (TVPA), a
plaintiff must show that a defendant (1) knew
of an effort to enforce the TVPA and (2)
intentionally obstructed or attempted to obstruct
that enforcement effort. 18 U.S.C.A. §§ 1591(d),
1595.
[20] Action Criminal acts
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Criminal Law Acts prohibited by statute
Human Trafficking and
Slavery Knowledge or Intent of Accused
There is a presumption, traceable to the common
law that, in enacting criminal statutes, Congress
intends to require a defendant to possess a
culpable mental state, and, absent contrary
language in the civil provision, such as certain
violations of the civil remedy provision under
the Trafficking Victims Protection Act (TVPA),
this carries over to civil claims predicated on
the criminal violation. 18 U.S.C.A. §§ 1591(d),
1595.
[21] Torts Particular cases
Alleged victim of account holder's sex-
trafficking operation failed to sufficiently
state claim against banking corporation for
obstructing enforcement of Trafficking Victims
Protection Act (TVPA) in purported class
action; complaint alleged that corporation filed
a suspicious activity report in which it reported
several hundred suspicious transfers, which
were made over a period of more than six
years and between accounts related to account
holder barely a month after account holder's
arrest, which allegation was inconsistent with
theory corporation acted to intentionally obstruct
investigation after it became known. 18 U.S.C.A.
§§ 1591(d), 1595.
[22] Limitation of Actions Negligence
Under New York law, a cause of action for
negligence accrues when the acts or omissions
constituting the negligence produce the injury.
N.Y. CPLR § 214(5).
[23] Limitation of Actions Estoppel to rely on
limitation
New York's three-year limitations period for
actions to recover damages for negligence was
not tolled under doctrine of equitable estoppel by
financial institutions' alleged failure to prevent
physical harm to alleged victims of account
holder's sex-trafficking venture, thus breaching
duty of care; complaints did not allege specific
misrepresentations by institutions or contexts
in which they were made, did not offer basis
for imputing to institutions alleged conduct
by persons associated with account holder to
prevent victims filing suit, institutions' failure to
file suspicious activity reports under banking law
was not an affirmative action, and making private
payments to victims so charges would not be
publicized was insufficient to establish equitable
estoppel. N.Y. CPLR § 214(5).
More cases on this issue
[24] Limitation of Actions Estoppel to rely on
limitation
Under New York law, equitable estoppel applies
where it would be unjust to allow a defendant to
assert a statute of limitations defense.
[25] Estoppel Application in general
Under New York law, “equitable estoppel”
is an extraordinary remedy that is to be
invoked sparingly and only under exceptional
circumstances.
[26] Limitation of Actions Estoppel to rely on
limitation
Under New York law, in order to invoke
equitable estoppel of limitations period, a
plaintiff must show that she has been induced by
fraud, misrepresentations, or deception to refrain
from filing a timely action.
[27] Limitation of Actions Estoppel to rely on
limitation
Under New York law, a plaintiff must
demonstrate reasonable reliance on the
defendant's misrepresentations in order to
invoke equitable estoppel of limitations period;
showings of reasonable reliance must be made
in some detail because it is fundamental to the
application of equitable estoppel for plaintiffs
to establish that subsequent and specific actions
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by defendants somehow kept them from timely
bringing suit.
Attorneys and Law Firms
David Boies, II, Boies, Schiller & Flexner LLP, Armonk,
NY, Sigrid S. McCawley, Daniel Crispino, Megan Nyman,
Boies, Schiller & Flexner LLP, Fort Lauderdale, FL, Bradley
J. Edwards, Brittany Henderson, Dean Kaire, Edwards
Henderson, Fort Lauderdale, FL, Andrew Villacastin,
Rachael Schafer, Boies Schiller Flexner LLP, New York, NY,
for Plaintiff.
Charlotte Taylor, Jones Day, Washington, DC, Amanda Leigh
Dollinger, Jones Day, New York, NY, Bethany K. Biesenthal,
Carol Tian Li, Kristina Cercone, Paula Quist, Shea Flanagan
Spreyer, Jones Day, Chicago, IL, for Defendant Bank of
America, N.A. in No. 25-cv-8520
Andres C. Salinas, Boyd Milo Johnson III, Christopher Jean
Bouchoux, Wilmer Cutler Pickering Hale and Dorr LLP,
New York, NY, Brittany R. Warren, Wilmer Cutler Pickering
Hale and Dorr LLP, Washington, DC, Felicia H. Ellsworth,
Wilmer, Cutler, Pickering, Hale and Dorr, LLP, Boston, MA,
for Defendant The Bank of New York Mellon Corporation in
No. 25-cv-8525.
OPINION AND ORDER
JED S. RAKOFF, United States District Judge:
*1 In these two putative class actions, consolidated on
consent for pretrial purposes, pseudonymous plaintiffs allege
that two major financial institutions -- Bank of America, N.A.
(“Bank of America”) and The Bank of New York Mellon
Corporation (“BNY”) -- knowingly participated in, and
benefited from, the sex trafficking enterprise masterminded
by Jeffrey Epstein. Each “Jane Doe” plaintiff -- to whom this
Opinion and Order will refer as “BOA Jane Doe” and “BNY
Jane Doe,” respectively -- asserts claims under the federal
Trafficking Victims Protection Act (“TVPA”), 18 U.S.C. §
1591 et seq., as well as negligence claims under New York
law.
On November 13, 2025, each defendant moved to dismiss
the complaint against it. See Doe v. Bank of America, N.A.,
ECF No. 38; Doe v. Bank of N.Y. Mellon Corp., ECF No.
29. The motions were fully briefed on December 8, 2025,
and the Court held oral argument on December 15, 2025.
See Doe v. Bank of America, N.A., ECF Nos. 39 (“BOA
MOL”), 44 (“BOA Opp'n”), 48 (“BOA Reply”); Doe v. Bank
of N.Y. Mellon Corp., ECF Nos. 30 (“BNY MOL”), 38
(“BNY Opp'n”), 42 (“BNY Reply”). At the conclusion of
oral argument, the Court, taking account of how many of the
plaintiffs’ allegations were conclusory but also recognizing
that an initial leave to amend a complaint should be liberally
granted, see Fed. R. Civ. P. 15(a)(2), held defendants’ motions
to dismiss in abeyance and granted plaintiffs the opportunity
to amend their complaints, which plaintiffs did on December
29, 2025. See Doe v. Bank of America, N.A., ECF No. 50
(“BOA Am. Compl.”); Doe v. Bank of N.Y. Mellon Corp.,
ECF No. 45 (“BNY Am. Compl.”). Thereafter, the parties, in
response to the amendments, supplemented their briefing on
the motions to dismiss. See Doe v. Bank of America, N.A.,
ECF Nos. 62 (“BOA Supp. Br.”), 65 (“BOA Supp. Opp'n”);
Doe v. Bank of N.Y. Mellon Corp., ECF Nos. 55 (“BNY Supp.
Br.”), 59 (“BNY Supp. Opp'n”).
After careful consideration, the Court, on January 29, 2026,
entered a “bottom-line” Order in which it (1) granted in part
and denied in part Bank of America's motion to dismiss and
(2) granted BNY's motion to dismiss in its entirety. See Doe
v. Bank of America, N.A., ECF No. 70; Doe v. Bank of N.Y.
Mellon Corp., ECF No. 64. This Opinion and Order sets forth
the reasons for the Court's determinations.
I. Factual Allegations
For the purpose of deciding defendants’ motions, the Court
assumes the truth of the non-conclusory allegations in the
amended complaints. See Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
These actions are among the numerous cases that have
arisen from the conduct of Jeffrey Epstein, “the world's most
infamous sexual predator.” See BOA Am. Compl. ¶ 1; BNY
Am. Compl. ¶ 1. In brief, plaintiffs allege that defendants
benefited from providing financial services to Epstein and
his associates in ways that, as defendants knew or should
have known, furthered Epstein's sex trafficking operation and
thereby injured plaintiffs and the class of Epstein's victims
that they seek to represent.
*2 The amended complaints contain numerous allegations
common to both defendants, so the Court discusses those
allegations first before turning to the allegations specific to
each defendant.
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A. Allegations Relating to Both Defendants
[1] Plaintiffs allege that more than $1 billion flowed into
and out of Epstein's accounts at large financial institutions,
including the two defendants here. BOA Am. Compl. ¶
2; BNY Am. Compl. ¶ 3. Defendants “knowingly and
intentionally benefited from the assistance and support [they]
provided to Epstein, including from fees, referrals, and
the development and preservation of relationships” with
Epstein and his wealthy associates. BOA Am. Compl. ¶ 5;
BNY Am. Compl. ¶ 9. This, plaintiffs allege, was despite
the defendants’ suspecting and recklessly disregarding that
some of these transfers were in furtherance of Epstein's
sexual misconduct. BOA Am. Compl. ¶¶ 3-4; BNY Am.
Compl. ¶¶ 4-6. Moreover, defendants “knowingly and
fraudulently concealed” their knowledge and conduct by,
among other things, failing to submit Suspicious Activity
Reports (“SARs”) that they were legally required to file with
regulators. See BOA Am. Compl. ¶ 12; BNY Am. Compl. ¶
21. 1
The amended complaints describe Epstein's sex trafficking
operations at length. See BOA Am. Compl. ¶¶ 26-52;
BNY Am. Compl. ¶¶ 37-75. But since Epstein's grotesque
misconduct has elsewhere been widely recounted, including
in other decisions of this Court, see, e.g., Doe 1 v. Deutsche
Bank Aktiengesellschaft (“Deutsche Bank”), 671 F. Supp. 3d
387, 396-400 (S.D.N.Y. 2023), the Court here provides only
a brief summary:
*3 From the early 1990s through the summer of 2019,
Epstein recruited numerous young women and girls from
around the world to engage in commercial sex acts. He
sexually abused them, threatened them with physical and
reputational harm if they did not comply with his demands,
falsely promised to further their career and educational
aspirations, and exploited their vulnerabilities by threatening
to deny them such necessities as housing, food, and clothing.
BOA Am. Compl. ¶ 26; BNY Am. Compl. ¶ 37. The sexual
abuse that Epstein perpetrated took place at his townhouse
in New York, his mansion in Palm Beach, Florida, and his
private island in the U.S. Virgin Islands, among other places,
and Epstein transported his victims across state lines and
national boundaries. BOA Am. Compl. ¶¶ 27, 35; BNY
Am. Compl. ¶¶ 38, 46. To perpetrate and conceal his sex
trafficking venture, Epstein availed himself of the services
of so-called “in-house” attorneys and accountants, as well
as other accomplices who procured his victims. See BOA
Am. Compl. ¶¶ 36-38, 44-52; BNY Am. Compl. ¶¶ 47-51,
67-75. Epstein and his co-conspirators referred to their sex
trafficking venture as an “organization,” although it did not
take the form of any single legal entity. BOA Am. Compl. ¶
36; BNY Am. Compl. ¶ 47.
In 2006, Epstein was arrested in Florida in connection with
allegations that he had sexually abused more than thirty
children in his Palm Beach mansion. BOA Am. Compl. ¶
32; BNY Am. Compl. I 43. He subsequently pled guilty to
two felonies, was required to register as a sex offender, and
was briefly incarcerated. BOA Am. Compl. ¶ 33; BNY Am.
Compl. ¶ 44. He entered into a non-prosecution agreement
with the United States Attorney's Office for the Southern
District of Florida that, inter alia, barred that office from
prosecuting Epstein for violations of the TVPA and for other
sex offenses. BOA Am. Compl. ¶ 33; BNY Am. Compl. ¶ 44.
More than a decade later, on July 2, 2019, the United States
Attorney's Office for the Southern District of New York filed
a two-count, sealed indictment charging Epstein with TVPA
conspiracy and substantive sex trafficking. See United States
v. Epstein, No. 19 Cr. 490 (S.D.N.Y.); BOA Am. Compl. ¶
39; BNY Am. Compl. ¶ 52. Epstein was arrested pursuant to
that indictment on July 8, 2019, was detained, and was found
dead from apparent suicide in the Metropolitan Correctional
Center on August 10, 2019. BOA Am. Compl. ¶¶ 40-41; BNY
Am. Compl. ¶¶ 53-54. One of his primary co-conspirators,
Ghislaine Maxwell, was charged in July 2020 with federal
sex trafficking crimes; a jury convicted her on five counts in
December 2021, and she was sentenced to a substantial prison
term that she is now serving. See United States v. Maxwell,
No. 20 Cr. 330 (S.D.N.Y.); BOA Am. Compl. ¶¶ 42-43; BNY
Am. Compl. ¶¶ 55-65.
Plaintiffs allege that defendants knew or should have known
of Epstein's misconduct and recklessly chose to disregard
it even while continuing to provide him with substantial
banking services that assisted his misconduct. In support
of these assertions, plaintiffs cite dozens of media reports
and lawsuits concerning Epstein's conduct, beginning as
early as 2002 and continuing through the date of Epstein's
death. See BOA Am. Compl. ¶¶ 53-91; BNY Am. Compl.
¶¶ 76-110. In addition, plaintiffs allege, defendants were
aware of Epstein's suspicious relationships with numerous
associates, including not only Maxwell but also, in particular,
Jean-Luc Brunei, a French “model scout” who allegedly
recruited victims for Epstein via a modeling agency called
MC2 that Epstein and Brunei established. BOA Am. Compl.
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¶¶ 130-146; BNY Am. Compl. ¶¶ 114-136. The amended
complaints allege that defendants continued banking Epstein,
his co-conspirators, and entities associated with him despite
defendants’ knowledge of his misconduct and despite the
growing suspicions that their services were being used by
Epstein to help further that misconduct. BOA Am. Compl. ¶
92; BNY Am. Compl. ¶ 113.
In the latter regard, the amended complaints allege, inter
alia, that defendants failed to comply with relevant regulatory
obligations. Specifically, federal bank secrecy laws and
regulations “require financial institutions to monitor for
and report potentially suspicious activity related to human
trafficking.” BOA Am. Compl. ¶ 190; BNY Am. Compl.
¶ 161. Banks are also legally obligated to conduct due
diligence on their customers, a process that entails review
of, among other things, “media reports, news articles,” and
“transactions or activity that [a bank] considers unusual or
potentially suspicious.” BOA Am. Compl. ¶¶ 191-192; BNY
Am. Compl. ¶¶ 162-164. 2 Through this process, plaintiffs
allege, defendants “learned and disregarded or should have
learned of Epstein's sex trafficking venture,” the roles played
by certain of his co-conspirators, and defendants’ own
involvement. BOA Am. Compl. ¶¶ 193, 195; BNY Am.
Compl. ¶¶ 165-166. Plaintiffs further allege that the banks
recognized but failed to timely report certain suspicious
transactions involving Epstein, his co-conspirators, and his
victims. See BOA Am. Compl. ¶¶ 341-352; BNY Am.
Compl. ¶¶ 182-203, 240, 249.
B. Additional Allegations Specific to Bank of America
*4 In addition to the allegations that are common to
both amended complaints, each amended complaint contains
defendant-specific allegations. The amended complaint
against Bank of America alleges that the bank provided
non-routine services that facilitated Epstein's sex trafficking
venture (including the trafficking of BOA Jane Doe), that it
had actual and constructive knowledge of that venture and
some of its activities, that it benefited from its relationship
with Epstein and its provision of services to him, and that it
failed to make required regulatory filings.
Overall, the amended complaint alleges that Bank of America
provided “financial support, assistance, and facilitation to
Epstein's sex trafficking” from as early as 2001 to as late as
2019. BOA Am. Compl. ¶ 4. During this period, the amended
complaint alleges, Bank of America opened and maintained
accounts for Epstein, his entities and agents, and BOA Jane
Doe, even though the bank was on notice for many years
prior of the many allegations of sex trafficking that had been
lodged against Epstein and his co-conspirators. Id. ¶¶ 4, 6,
95-113, 120-129. The amended complaint also alleges that
Bank of America also provided banking services to Brunei's
supposed modeling agency, MC2, and that Epstein and Brunei
used MC2's business operating account at Bank of America to
fund and conceal their sex trafficking enterprise. Id. ¶¶ 6(h),
130-142, 326-340.
The amended complaint asserts that Bank of America
provided services connected to Epstein's trafficking of
representative plaintiff BOA Jane Doe. See id. ¶¶ 197-237.
According to the amended complaint, BOA Jane Doe was
living in Russia when she met Epstein in 2011. Id. ¶ 197.
From 2011 through 2019, Epstein sexually abused BOA
Jane Doe on at least a hundred occasions, including by
means of forcible rape and forcible touching. Id. ¶ 200.
Moreover, Epstein transported BOA Jane Doe from New
York to other states for her to engage in commercial sex acts.
Id. ¶ 203. Yet, Bank of America, despite its prior knowledge
of Epstein's first conviction and of widespread accusations
of his sexual misconduct, in 2013 opened an account in
the name of BOA Jane Doe at the direction of Epstein's
associates. Id. ¶ 208. Although BOA Jane Doe barely spoke
English, had no prior income or wealth, had no ability to earn
legitimate income in the United States, and was the citizen
of a country identified as “High Risk” for sex trafficking,
id. ¶ 209, Bank of America treated BOA Jane Doe as a
“Preferred Customer” and provided her with premier services
not ordinarily available to customers of her means, id. ¶ 210.
Epstein and his associates wired tens of thousands of dollars
into BOA Jane Doe's account, id. ¶¶ 211-222, 231, and they
used the account in BOA Jane Doe's name “to make transfers
unrelated to [BOA] Jane Doe without any apparent legitimate
purpose and contrary to what the Bank knew would be typical
transfers,” id. ¶ 223.
As to the sources of Bank of America's knowledge of
Epstein's sex trafficking venture, the amended complaint
points not only to numerous publicly available media reports
but also to the knowledge of an employee, Paul Morris, who
in 2016 joined Merrill Lynch, a wholly owned subsidiary of
Bank of America, after having previously served as one of
Epstein's bankers at JPMorgan Chase and Deutsche Bank. See
id. ¶ 86. According to the amended complaint, “Morris had
actual knowledge of Epstein's sex crimes and use of various
financial institutions to fuel and legitimize his sex-trafficking
operation,” id. ¶ 150, including knowledge of the fact that
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Epstein financed MC2 and used it in furtherance of his sex
trafficking venture, id. ¶¶ 148-163. Moreover, around the time
that Morris became a Bank of America employee, at least ten
Epstein-connected accounts were opened at Merrill Lynch. Id.
¶¶ 164-166. “Epstein's relationship with Morris went beyond
a typical client-banker relationship,” id. ¶ 167, with Morris
frequently meeting with Epstein and with Epstein referring
“wealthy and influential acquaintances” to the bank, id. ¶¶
167-168.
*5 The amended complaint also points to what it
characterizes as the bank's failure to properly scrutinize
suspicious transactions involving Epstein's own accounts.
For example, Leon Black, who the amended complaint
characterizes as “a billionaire and one [of Bank of America's]
wealthiest clients,” at one point transferred some $170 million
to Epstein “without any known or apparent lawful or business
reason or justification.” Id. ¶¶ 4, 6(g), 255-258. The amended
complaint further alleges that “investment gains were never
received back to Black from any of the alleged investment
companies set up by Epstein.” Id. ¶ 252. The amended
complaint alleges in addition that Black used his Bank of
America accounts to make millions of dollars in payments to
Epstein's victims, id. ¶¶ 260-281, and that the bank purposely
avoided subjecting these suspicious transactions to greater
scrutiny that would have revealed their improper purpose. See
id. ¶¶ 114-118, 245-247.
Additionally, the amended complaint alleges that Bank
of America knowingly and intentionally failed to timely
file SARs that the bank was legally obligated to file. Id.
¶¶ 5, 6(i). It alleges that the bank only very belatedly
reported numerous suspicious transactions, including more
than “65 wire transactions totaling [$]208,000 ... that [Bank of
America] facilitated between Epstein and [BOA] Jane Doe”
over a period of years. See id. ¶ 227-230. Moreover, the
bank did not timely report the aforementioned suspicious
transactions involving Black. Id. ¶¶ 255-259, 264-281. The
amended complaint characterizes Bank of America's failure
to report these and other suspicious transactions as one of
the “non-routine” services that Bank of America provided
Epstein. See id. ¶¶ 294-317.
The amended complaint finally alleges that, in connection
with the conduct summarized above, Bank of America
knowingly and intentionally benefited from the services it
provided to Epstein, including in the forms of “fees, referrals,
and the development and preservation of relationships” with
clients and potential clients, including Black. Id. ¶¶ 5,
282-286.
C. Additional Allegations Specific to BNY
The amended complaint against BNY contains far fewer
defendant-specific allegations than the amended complaint
against Bank of America. Such allegations fall basically into
three categories:
First, BNY Jane Doe alleges that BNY “processed at least
$600 million of suspicious wire transfers” and “maintained
at least twelve accounts for Epstein and his known entities
and agents” between 2013 and 2019. BNY Am. Compl. ¶¶
5, 10(f), 11, 12. BNY Jane Doe alleges that BNY, acting as a
correspondent or clearing bank, processed transfers between
Epstein's accounts as well as between Epstein-affiliated
accounts and third parties. Id. ¶ 12. The amended complaint
specifically alleges that BNY processed approximately $1.4
million in “suspicious wires” from the accounts of “Epstein-
related entities” to “various third parties”; it goes on to allege
that a majority of these and other suspicious wires “were
made for the benefit of young women.” Id. According to
the amended complaint, these and other transactions that
BNY processed went beyond the services that BNY routinely
offered as a clearing bank. See id. ¶¶ 168-204. Moreover,
the substantial transfers that BNY processed were often in
whole-number increments. See id. ¶¶ 171, 179-180, 183,
186-191. Citing a series of SARs that BNY filed after
Epstein's death, the amended complaint alleges that BNY
should have found many of these transactions suspicious at
the time it processed them, either because of the nature of the
transactions or because of media reports about Epstein's and
his co-conspirators’ conduct. E.g., id. ¶¶ 184-203.
As to BNY Jane Doe personally, the amended complaint
alleges that she “was paid directly from accounts in Jeffrey
Epstein's personal name via wire transfers that were processed
by BNY.” Id. ¶ 216. According to the amended complaint,
the transactions involving BNY Jane Doe were among many
transfers that BNY “knew and should have known” were
suspicious because they involved Epstein's co-conspirators,
were made for the benefit of Eastern European women, or had
no apparent lawful purpose. Id. ¶¶ 216-219.
*6 Second, BNY Jane Doe alleges that, in 2009, a
former BNY subsidiary called Mellon United National Bank
extended a line of credit to MC2, the so-called modeling
agency that Brunei operated for the benefit of Epstein's sex
trafficking venture, and that MC2 “would have collapsed due
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to lack of liquidity” if the line of credit had not been provided.
See id. ¶¶ 10(d), 13, 117, 251, 258. The amended complaint
alleges that Mellon United National Bank required Epstein to
personally guarantee the line of credit. Id. ¶ 10(d), 117-118,
125-126. Based on these and other allegations, the amended
complaint continues, BNY knew or should have known about
the relationships among Epstein, Brunei, and MC2. See id.
¶¶ 114-137, 165-167. In fact, the amended complaint alleges,
SARs that BNY filed in the wake of Epstein's death included
the names of victims who were recruited by Brunei and MC2.
Id. ¶ 253.
Third, BNY Jane Doe alleges that BNY failed to conduct due-
diligence and know-your-customer processes regarding the
Epstein-related transactions that the bank processed. Id. ¶¶
236-249. Specifically, the amended complaint alleges, BNY
had access to “all the same information that Deutsche Bank
had about Jeffrey Epstein,” id. ¶ 241, and could have, under
the USA Patriot Act,’ requested further information from
that bank about Epstein's suspicious activities, id. ¶ 249. It
also alleges that BNY repeatedly failed to timely file SARs
concerning transactions involving Epstein and his associates.
Id. ¶¶ 183-203, 216-219, 259-261.
II. Plaintiffs’ Claims
Based on the allegations summarized above, the amended
complaints assert the same six claims against each defendant.
Four of those claims (Counts One through Four) arise under
the TVPA and are for (1) violating the TVPA by participating
in Epstein's sex trafficking venture and benefiting thereby,
BOA Am. Compl. ¶¶ 375-396; BNY Am. Compl. ¶¶ 281-302
(Count One); (2) violating the TVPA by perpetrating sex
trafficking, BOA Am. Compl. ¶¶ 397-409; BNY Am. Compl.
¶¶ 303-315 (Count Two); (3) aiding, abetting, and inducing
TVPA violations, BOA Am. Compl. ¶¶ 410-425; BNY Am.
Compl. ¶¶ 316-331 (Count Three); and (4) obstructing the
enforcement of the TVPA, BOA Am. Compl. ¶¶ 426-444;
BNY Am. Compl. ¶¶ 332-351 (Count Four). Plaintiffs’
remaining claims sound in negligence and are governed by
New York state law. Count Five asserts a claim for negligent
failure to exercise reasonable care to prevent physical harm,
BOA Am. Compl. ¶¶ 445-457; BNY Am. Compl. ¶¶ 352-364,
and Count Six asserts a claim for negligent failure to exercise
reasonable care as a banking institution, BOA Am. Compl.
¶¶ 458-478; BNY Am. Compl. ¶¶ 365-385. Each amended
complaint seeks monetary damages, including punitive and
exemplary damages, as well as attorneys’ fees, costs, and
other relief. See BOA Am. Compl. at 114-15; BNY Am.
Compl. at 93.
III. Legal Standards
To survive a motion to dismiss under Rule 12(b)(6), a
pleading “must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’
” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007)). “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, 127
S.Ct. 1955).
[2] [3] [4] Because Rule 12(b)(6) “assesses the legal
feasibility of the complaint, but does not weigh the evidence
that might be offered to support it,” Global Network
Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d
Cir. 2006), courts may only consider materials beyond the
four corners of a pleading in certain limited circumstances. 3
A pleading is “deemed to include any written instrument
attached to it as an exhibit, materials incorporated in it by
reference, and documents that, although not incorporated by
reference, are ‘integral’ to the complaint.” Sierra Club v.
Con-Strux, LLC, 911 F.3d 85, 88 (2d Cir. 2018). Here, such
documents include the various SARs cited in the amended
complaints.
*7 Where a motion to dismiss is granted under Rule 12(b)
(6), “leave to amend the complaint should be refused only
if there is no basis for concluding that plaintiff can state a
claim and thus permitting an amendment would be futile.” 5B
Fed. Prac. & Proc. Civ. § 1357 (4th ed. 2025); see also, e.g.,
Porat v. Lincoln Towers Cmty. Ass'n, 464 F.3d 274, 276 (2d
Cir. 2006). Here, however, after being apprised of defendant's
stated grounds for dismissal, both plaintiffs were given leave
to amend, which they did.
IV. Analysis
The Court begins by describing the framework that Congress
created for civil claims under the TVPA. It then analyzes
each of plaintiffs’ TVPA claims, concluding that only BOA
Jane Doe's civil participation and obstruction claims are
plausibly stated. Finally, the Court assesses plaintiffs’ state-
law negligence claims, holding that they are time-barred
and that plaintiffs’ allegations are insufficient to warrant the
application of equitable estoppel.
A. Trafficking Victims Protection Act Claims
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When initially enacted in 2000, the TVPA imposed only
criminal liability on sex traffickers. See Pub. L. 108-193, §
4(a)(4). But in 2003, Congress created a civil cause of action
under the TVPA. Specifically, Congress provided that “[a]n
individual who is a victim of [a TVPA violation] may bring
a civil action against the perpetrator (or whoever knowingly
benefits, or attempts or conspires to benefit, financially or by
receiving anything of value from participation in a venture
which that person knew or should have known has engaged
in an act in violation of this chapter) in an appropriate district
court of the United States and may recover damages and
reasonable attorneys fees.” 18 U.S.C. § 1595(a). Civil claims
under the TVPA must be brought no later than ten years after a
cause of action arises or ten years after a minor victim reaches
eighteen years of age, whichever is later. Id. § 1595(c).
Section 1595(a) thus creates civil liability for two kinds of
defendants, parallelling the two kinds of criminal liability set
forth in § 1591(a)(1) and (a)(2).
The first, a TVPA “perpetrator,” is someone who, as
set forth in § 1591(a)(1), is an individual or entity that
“recruit[ed], harbor[ed], transport[ed], provid[ed], obtain[ed],
advertise[d], maintain[ed], patroniz[ed], or solicit[ed] by any
means” a sex trafficking victim. A sex trafficking victim, in
turn, is effectively defined as someone who was caused to
have sex by the perpetrator's use of force, threats of force,
fraud, coercion, or any combination thereof, or who was under
the age of 18 when induced by the perpetrator to have sex. Id.
The second kind of defendant reached by § 1595(a), which in
this respect parallels § 1591(a)(2), is a TVPA “participant,”
that is, a person or entity that “knowingly benefits, or attempts
or conspires to benefit, financially or by receiving anything of
value from participation in a venture which that [defendant]
knew or should have known has engaged in an act in violation
of [the TVPA].” Id. § 1595(a).
In Count One of each amended complaint, the plaintiffs assert
that the banks fall into this second kind of civil defendant,
that is, that the banks were participants in, and knowingly
benefited from, what they knew or should have known was
Epstein's sex trafficking venture. But in the next two counts,
the plaintiffs go further and assert that defendants were
themselves perpetrators of sex trafficking (Count Two) or
were direct aiders-and-abetters of such perpetrators, namely,
Epstein (Count Three). Finally, in Count Four, plaintiffs bring
a different kind of Section 1595(a) claim, contending that
defendants have civil liability for directly violating 18 U.S.C.
§ 1591(d), which criminalizes “obstruct[ing], attempt[ing] to
obstruct, or in any way interfer[ing] with or prevent[ing] the
enforcement of [the TVPA].” The Court considers each of
these theories in turn.
Count One: Participant Liability
*8 [5] The gravamen of Count One of the amended
complaints is that each defendant “participated in Jeffrey
Epstein's sex-trafficking venture, in violation of 18 U.S.C.
§ 1591(a)(2).” Deutsche Bank, 671 F. Supp. 3d at 405.
This claim involves three elements: first, that the defendant
participated in a commercial sex trafficking venture; second,
that the defendant knew or should have known that the
venture either involved the perpetrator's use of force, the
threat of force, fraud, or coercion to cause the victims to
participate in sex or that the venture involved sex with victims
who were under the age of 18; and third, that the defendant
benefited from its participation in the venture. See generally
id. The Court discusses each of these elements as applied to
each of the defendants.
a. Participation
[6] [7] Participation, for purposes of a claim under Section
1595 (a), requires allegations of “specific conduct that
furthered the sex trafficking venture,” that is, allegations of
conduct that amounts to “more than just passive facilitation”
and, instead, reaches “some level of active engagement.”
Deutsche Bank, 671 F. Supp. 3d at 405 (collecting cases).
This Court has previously assumed, without deciding, that, in
the banking context, “active engagement” requires a financial
institution to provide more than its usual routine services.
Id.; see also Mueller v. Deutsche Bank Aktiengesellschaft,
777 F. Supp. 3d 329, 338 (S.D.N.Y. 2025) (finding complaint
lacked allegations “that the defendants provided anything
other than routine financial services ... or that they provided
services or support that w[ere] tailored” to sex traffickers).
The Court adopts that standard here, both because it is implicit
in the requirement of § 1595 that the defendant “knowingly
benefit[ ]” from participation in a sex trafficking venture and
because anything less would impose an almost impossible
burden on banks in connection with the huge volume of
routine services they daily provide on a computerized basis.
[8] The amended complaint against Bank of America plainly
alleges the provision of non-routine services that facilitated
Epstein's sex trafficking venture. To begin with, the amended
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complaint alleges that Bank of America gave preferential
treatment to BOA Jane Doe by, among other things, providing
her with premier services and facilitating the transfer of
tens of thousands of dollars into and out of her account, all
notwithstanding the facts that the bank had every reason to
know that BOA Jane Doe had no ability to earn legitimate
income in the United States and that Epstein, who arranged
the set up of the account and was involved in the transfers,
had already been convicted of sex crimes involving underage
girls. See BOA Am. Compl. ¶¶ 6(f), 52, 197-237, 301, 311,
314, 333.
Going further, the amended complaint contains numerous
allegations that Bank of America provided banking services
to Epstein and to individuals and entities purportedly
associated with his sex trafficking venture, such as, for
example, the “modeling agency” MC2, notwithstanding
circumstances that the bank allegedly knew were suspicious
and non-routine. Further, the amended complaint alleges
that Bank of America intentionally delayed filing SARs
concerning Epstein's activities. See id. ¶¶ 6, 227-230,
254-280, 294-301, 305-314. This Court has previously held
that intentionally facilitating suspicious account transfers and
failing to file SARs are among the ways that banks can
go “beyond merely providing their usual services to Jeffrey
Epstein and his affiliated entities.” Deutsche Bank, 671 F.
Supp. 3d at 406.
For the foregoing reasons, the amended complaint against
Bank of America satisfies the participation element of Count
One.
*9 [9] The same cannot be said, however, of the amended
complaint against BNY. Critically, BNY largely functioned
as a correspondent or clearing bank that had much less direct
involvement with Epstein or his victims. 4 Thus, although the
amended complaint alleges that BNY maintained accounts
for, and processed hundreds of millions of dollars in wire
transfers on behalf of, Epstein and his associates, the amended
complaint does not contain facts sufficient to allege that
these were non-routine services. As one of the world's largest
correspondent banks, BNY provided these services to other
financial institutions pursuant to clearing or correspondent
agreements. See, e.g., BNY Am. Compl. ¶¶ 5-6, 12, 146,
169, 192. Unlike the amended complaint against Bank of
America (and the allegations against JPMorgan Chase and
Deutsche Bank that the Court previously found sufficient
to survive motions to dismiss, see Deutsche Bank, 671 F.
Supp. 3d at 405-06), the amended complaint against BNY
does not allege that BNY provided Epstein with any non-
routine services or that, indeed, any BNY employee played
any role in structuring Epstein-related accounts or transfers
or even communicated with Epstein. See BNY Supp. Br. at
4-5. Moreover, the bulk of the transfers to which the amended
complaint points were between Epstein-related accounts, and
the amended complaint does not explain, except in conclusory
terms, how such transfers furthered Epstein's sex trafficking
venture or were other than routine and essentially automatic.
See BNY Am. Compl. ¶ 185. As for the relatively small
number of transactions involving women who were allegedly
victims of, or otherwise connected to, Epstein's sex trafficking
venture, the amended complaint contains no allegations that
BNY, in its role as a correspondent bank, processed these
transactions in a non-routine fashion or with knowledge
that the payments would assist, support, or facilitate sex
trafficking. See, e.g., id. ¶ 216 (alleging only that transfers
from Epstein to BNY Jane Doe were “processed by” BNY).
Thus, the amended complaint alleges that BNY engaged in
“passive facilitation,” but not in the “active engagement” that
the Court concludes is required to satisfy the participation
element of a TVPA participation claim.
As for the amended complaint's allegations concerning the
line of credit that Mellon United National Bank, a former
BNY subsidiary, extended to MC2, these are also insufficient
to establish the participation element. As a threshold matter,
BNY argues that Mellon United National Bank's conduct
cannot be imputed to BNY because the amended complaint
lacks allegations sufficient to pierce the so-called corporate
veil between the two entities. BNY Supp. Br. at 2-3. BNY
Jane Doe responds that it is premature for the Court to resolve,
at this stage of the litigation, whether Mellon United National
Bank's conduct can be imputed to BNY. BNY Supp. Opp'n
at 8. If the Court had to reach that question at this time, the
Court might well be skeptical of BNY Jane Doe's position
because the amended complaint provides no basis for the
Court to infer that BNY “exercised complete domination”
over Mellon United National Bank and that “such domination
was used to commit a fraud or wrong that injured” her.
See, e.g., Doheny v. Int'l Bus. Machs., Corp., 714 F. Supp.
3d 342, 373-75 (S.D.N.Y. 2024) (dismissing claims against
parent entity where complaint lacked allegations sufficient
to pierce corporate veil). But the Court need not decide
the issue now, because even were BNY Jane Doe correct
that BNY is responsible for Mellon United National Bank's
conduct, the amended complaint does not allege that the
line of credit that was extended to MC2 was a non-routine
service. At most, the amended complaint alleges that, by
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extending the line of credit to MC2 under a personal guarantee
from Epstein, Mellon United National Bank engaged in
“passive facilitation” of Epstein's sex trafficking venture,
which, as previously noted, is insufficient in itself to sustain
the participation element of Count One. See Deutsche Bank,
671 F. Supp. 3d at 405.
*10 That leaves, finally, the amended complaint's
allegations that BNY failed to conduct appropriate due
diligence regarding the Epstein-related transactions that
it processed and, likewise, that it failed to timely file
SARs concerning those transactions. BNY argues that these
allegations amount to, at most, “passive nonfeasance,” which
is insufficient to establish the participation element. BNY
Supp. Br. at 7-9 (citing G.G. v. Salesforce.com, Inc., 76 F.4th
544, 562-64 (7th Cir. 2023)). BNY Jane Doe responds by
pointing out that this Court previously found the participation
element satisfied where a bank “delayed filing suspicious
activity reports concerning Epstein's activities” and “failed
to implement oversight imposed by” a bank committee.
BNY Supp. Opp'n at 7 (citing Deutsche Bank, 671 F. Supp.
3d at 405-06). But the Court reached that conclusion in
the context of allegations that the defendant bank not only
“willfully” failed to comply with its regulatory obligations
but also actively “structured” Epstein-related transactions to
keep them from appearing suspicious. See Deutsche Bank,
671 F. Supp. 3d at 405-06. Such allegations are absent from
the amended complaint against BNY.
Thus, the Court concludes that BNY Jane Doe has failed to
establish the first element of her TVPA participation claim
against BNY. While the Court is doubtful that BNY Jane
Doe's amended complaint satisfies either of the other two
elements of Count One, it need not reach them, as the failure
to satisfy the first element is a sufficient basis to dismiss Count
One of BNY Jane Doe's amended complaint.
b. Knowledge
[10] [11] Since, as described above, Count One of BOA
Jane Doe's amended complaint adequately alleges active
participation in Epstein's sex trafficking venture, the Court
moves on to the second element, i.e., whether the amended
complaint adequately alleges that Bank of America either
knew or should have known that Epstein's venture used force,
the threat of force, fraud, coercion, or some combination of
the same to cause its victims to submit to sex, or that the
victims who submitted to sex were under the age of 18.
“Should have known” -- the language of § 1595(a) -- normally
suggests negligence, and BOA Jane Doe so argues. But Bank
of America contends that civil liability for a criminal offense
should, at least in the context of the TVPA, be taken to
require, if not actual knowledge, at least reckless disregard.
But the express language of § 1595 cannot so facilely be
ignored, and the Court now holds that “should have known”
in the usual sense of negligence is sufficient. Nevertheless, the
Court further holds that BOA Jane Doe's amended complaint
satisfies even the higher standard of reckless disregard.
[12] It should also be noted that the Court previously held
that a defendant's knowledge or reckless disregard of the fact
that force, fraud, or coercion was used in the “sex-trafficking
venture that it is alleged to have participated in” does not
require that the defendant know or recklessly disregard the
fact that the force, fraud, or coercion was used with respect
to plaintiff herself. Deutsche Bank, 671 F. Supp. 3d at 406.
In reaching that conclusion, the Court reasoned that Section
1591(a)(2) expressly defines the scope of liability under the
TVPA in terms of a defendant's having knowingly benefited
from “participation in a venture” that has trafficked plaintiff,
not in terms of a defendant's having knowingly benefited from
participation in the trafficking of plaintiff personally. Id. Upon
careful consideration, the Court declines Bank of America's
invitation to disturb its prior conclusions in this regard. See
BOA MOL at 9-10 & n.3. Nevertheless, once again, even if
Bank of America's construction were accepted, it would be
satisfied by the allegations in the amended complaint against
the Bank.
The amended complaint plausibly alleges that Bank of
America recklessly disregarded in several ways information
suggesting that Epstein's venture was engaged in sex
trafficking. First, the amended complaint chronicles the many
publicly available media reports, which drew in turn on such
sources as police reports as well as public complaints in
civil lawsuits, that characterized Epstein as a “serial sexual
abuser and trafficker, including detailed reports making it
clear that his operation depended on his accessing ... large
amounts of cash.” E.g., BOA Am. Compl. ¶ 58; see also id.
¶¶ 70-74, 78-81, 83, 87, 90-91. Bank of America attempts to
minimize the amended complaint's sources as “news articles
and gossip columns” that merely asserted that “Epstein
surrounded himself with women and was a registered sex
offender,” BOA Supp. Br. at 10-11, but that mischaracterizes
the materials cited in the amended complaint, which, as
indicated above, provided considerable details about Epstein's
gross improprieties. While Bank of America was not required
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to automatically credit unproven allegations in civil lawsuits,
the amended complaint plausibly asserts that the bank turned
a blind eye to these repeated, detailed allegations, some
emanating from police reports widely circulated in the press,
by utterly failing to engage in due diligence about them. See,
e.g., BOA Am. Compl. ¶¶ 194-196.
*11 Second, the amended complaint also alleges that
Bank of America recklessly disregarded “numerous red
flags associated with Epstein's accounts, which all suggested
that Jeffrey Epstein operated a sex-trafficking venture.” See
Deutsche Bank, 671 F. Supp. 3d at 407. One such red flag
that related to BOA Jane Doe, among others, was banking
activity involving an address on East 66th Street in New York
City that, among other things, was allegedly “used to house
dozens and dozens of trafficking victims. See, e.g., BOA Am.
Compl. ¶¶ 52, 225, 301, 311. While Bank of America may not
have known this, what it did know was that it was to an entity
at this address that BOA Jane Doe's account made allegedly
unexplained monthly payments. BOA Am. Compl. ¶ 225.
More generally, the way large transfers passed in and out of
an account allegedly owned by an impecunious young woman
was surely enough to arouse suspicions and require inquiries,
none of which Bank of America undertook. See BOA Am.
Compl. ¶¶ 211-224, 226, 231. This was equally true of, for
example, transfer of tens of millions of dollars from Black to
Epstein, see id. ¶¶ 248-258; the payments made by Black to
victims of Epstein, see id. ¶¶ 260-272, 308-310; other wire
transfers involving Epstein's victims, some of whom were
also Bank of America customers, see id. ¶¶ 295-307, 313; and
suspicious transactions in MC2's operating account, see id. ¶¶
326-340.
Third, BOA Jane Doe has plausibly alleged that at least
one Bank of America employee, Morris, had direct personal
knowledge of Epstein's sex trafficking venture and that there
is a basis for the Court to impute Morris’ knowledge to
the bank. The amended complaint refers to documentary
evidence that Morris “knew of Epstein's crimes and the
risks of banking with him” by 2011, if not earlier. See id.
¶ 152 (reproducing January 3, 2011, memorandum stating
that Epstein “may be under investigation for other sex
crimes, including child trafficking”); see also id. ¶¶ 149-150,
162. Because Morris’ duties on behalf of Bank of America
allegedly included serving as a private banker for Epstein-
connected entities, see id. ¶¶ 163-164, Morris’ knowledge of
Epstein's conduct was “material to those duties” and thus may
be imputed to the bank. See Deutsche Bank, 671 F. Supp. 3d
at 407 (quoting Apollo Fuel Oil v. United States, 195 F.3d 74,
76 (2d Cir. 1999)).
For these reasons, the Court concludes that the amended
complaint filed by BOA Jane Doe satisfies the knowledge
element of her TVPA participation claim.
c. Benefit
[13] The third and final element of a TVPA participation
claim requires a plaintiff to allege that a defendant knowingly
benefitted from its participation in the sex trafficking venture.
Like the defendants in prior cases concerning Epstein's sex
trafficking, Bank of America does not contest “that [it]
received fees and other revenue from providing services to
Jeffrey Epstein and his affiliated entities.” Deutsche Bank,
671 F. Supp. 3d at 409; see generally BOA Supp. Br. at 13-14.
But also like prior defendants, Bank of America contends that
the benefit element of BOA Jane Doe's TVPA participation
claim requires her to allege that the bank obtained a benefit
while “knowing it is in return for [the defendant's] facilitation
of sex trafficking,” BOA Supp. Br. at 13, in other words, a
knowing quid pro quo.
[14] In an earlier case, the Court assumed arguendo, without
deciding, that Bank of America's position might be correct,
see Deutsche Bank, 671 F. Supp. 3d at 409; but the Court
now holds that allegations that the bank knowingly received
revenue from its participation in generally assisting a venture
that it knew, or should have known, involved sex trafficking
(as defined in § 1591) are sufficient to satisfy this element.
Congress did not draft Section 1595(a) to require an explicit
“quid pro quo,” something that Congress has done in drafting
other statutes. See, e.g., United States v. Benjamin, 95 F.4th
60, 65-68 (2d Cir. 2024) (reversing dismissal of indictment
where statutory language required proof of “quid pro quo”).
All that Congress provided in § 1595(a) was that a defendant
must knowingly benefit from participation in what it knew or
should have known was a forbidden venture. Hence, the Court
does not read the TVPA to require allegations of a “causal
relationship between affirmative conduct furthering the sex-
trafficking venture and receipt of a benefit,” Contra Geiss
v. Weinstein Co. Holdings LLC, 383 F. Supp. 3d 156, 169
(S.D.N.Y. 2019).
*12 Applying the proper standard here, the amended
complaint against Bank of America sufficiently alleges facts
proving the element of knowing benefit. Indeed, it comes
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close to meeting even defendant's suggested “quid pro quo”
requirement. The amended complaint contains numerous
allegations that Epstein and those associated with him would
not have conducted business with the bank were it not for
its facilitation of Epstein's sex trafficking. See BOA Am.
Compl. ¶¶ 340-363. To begin with, the amended complaint
alleges that Bank of America knowingly received “interest,
commissions, service fees, and other financial benefits”
from servicing Epstein and his associates, and it alleges
that Epstein “provided those financial benefits to [Bank
of America] precisely because it was facilitating his sex-
trafficking venture.” Id. ¶ 362. The amended complaint
further alleges that Bank of America “knew that if it flagged
any of [Epstein's suspicious] transactions, it would have lost
Epstein's business,” id. SI 353, as well as losing the business
of wealthy individuals connected to Epstein, id. For example,
the bank knew that, if it inquired into the suspicious transfers
between Black and Epstein, “it would lose the Black-related
accounts and the financial benefits attached to handling those
accounts,” id. ¶ 355, and the amended complaint alleges that,
“[r]ather than losing Black's or Maxwell's business, [Bank of
America] deliberately failed to monitor their account activity
or file SARs,” id. ¶ 357. While these allegations are hotly
disputed, they are assumed to be true for the purpose of
deciding Bank of America's motion and they sufficiently
establish the benefit element.
d. Conclusion
For the foregoing reasons, the Court concludes that the
amended complaint against Bank of America states a claim
for civil participation liability under the TVPA, but that the
amended complaint against BNY fails to do so.
Count Two: Perpetrator Liability
Separate from their Count One claim under the TVPA's
civil participation provision, the amended complaints assert
in Count Two that each defendant is also liable under the
TVPA as a direct perpetrator of sex trafficking. As the
Court noted above, under 18 U.S.C. §§ 1591(a)(1) and
1595(a), a TVPA victim may bring a civil action against a
defendant who knowingly “in or affecting interstate or foreign
commerce ... recruits, entices, harbors, transports, provides,
obtains, advertises, maintains, patronizes, or solicits by any
means a person” who is forced to engage in a commercial sex
act or, in the case of an underage victim, is caused to engage
in such an act. See Deutsche Bank, 671 F. Supp. 3d at 409-10.
[15] Here, plaintiffs have not adequately alleged that either
Bank of America or BNY was a knowing perpetrator of
sex trafficking. In fact, in their most recent briefs, plaintiffs
declined to defend the merits of Count Two in the face of
defendants’ motions to dismiss. See BOA Opp'n at 16 n.16;
BNY Opp'n at 18 n.15. Although plaintiffs did not delete
this count from the amended complaints, their supplemental
briefs do not so much as mention it. See generally BOA Supp.
Opp'n; BNY Supp. Opp'n. The Court therefore deems Count
Two abandoned.
[16] Furthermore, even had plaintiffs not effectively
abandoned Count Two despite including it in their amended
complaints, the position they previously took in trying to
defend it in connection with the original complaints is
untenable. Plaintiffs there argued that Count Two should
survive because they have alleged at least one TVPA violation
and Section 1595 “doesn't distinguish between different
violations” of the TVPA. BOA Opp'n at 16 n.14 (quoting
Bensky v. Indyke, 743 F. Supp. 3d 586, 599 (S.D.N.Y. 2024));
BNY Opp'n at 18 n.15 (same). As plaintiffs note, another
court in this District has held that if a complaint “plausibly
alleges one [TVPA] violation, the § 1595 claim survives, and
the Court need not address” other alleged violations at the
motion-to-dismiss stage. Bensky, 743 F. Supp. 3d at 599.
This Court respectfully disagrees because, as the Supreme
Court has held, Rule 12(b)(6) is an “important mechanism
for weeding out meritless claims,” and allowing a claim
to remain in a case merely because a plaintiff may have
plausibly asserted a different violation of the same statute
would undermine the rule's purpose. See Fifth Third Bancorp
v. Dudenhoeffer, 573 U.S. 409, 425, 134 S.Ct. 2459, 189
L.Ed.2d 457 (2014).
For these reasons, Count Two of each amended complaint
fails to state a claim.
Count Three: Aiding and Abetting
In Count Three, plaintiffs, largely relying on 18 U.S.C. § 2,
assert that Bank of America and BNY, by aiding and abetting
Epstein's sex trafficking venture, are liable as perpetrators.
See BOA Am. Compl. ¶¶ 410-425; BNY Am. Compl. ¶¶
316-331. But 18 U.S.C. § 2, a criminal statute, has no
application to civil claims brought under § 1595(a). See
BOA MOL at 20-21; BNY MOL at 18. As with Count
Two, plaintiffs no longer defend this count on its merits
and abandon it entirely in their supplemental briefing. See
generally BOA Supp. Opp'n; BNY Supp. Opp'n.
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*13 [17] Even had plaintiffs not abandoned their claim for
aiding and abetting, this Court has already held that “[t]he
TVPA does not provide civil liability for aiding and abetting”
because such liability “should not be inferred when a statute
does not expressly provide for it,” and there is no indication
that Congress, when it enacted the TVPA's civil cause of
action, intended to create liability for aiding and abetting. See
Deutsche Bank, 671 F. Supp. 3d at 410-11. The Court hereby
reaffirms its prior analysis and, accordingly, holds that Count
Three of each amended complaint fails to state a claim. 5
Count Four: Obstruction of TVPA Enforcement
Count Four asserts that defendants knowingly and
intentionally obstructed the enforcement of the TVPA in
violation of §§ 1591(d) and 1595, principally by failing to
timely file SARs concerning suspicious transactions related
to Epstein, his associates, and his victims like the plaintiffs
here. BOA Am. Compl. ¶¶ 426-444; BNY Am. Compl. ¶¶
332-351; see 18 U.S.C. § 1591(d).
[18] As a threshold matter, defendants contend that § 1595
does not create a private right of action for obstruction
because the only “victim” of any obstruction of enforcement
is the government. See BOA Suppl. Br. at 14; BNY Suppl.
Br. at 13. But this Court has previously held otherwise. See
Deutsche Bank, 671 F. Supp. 3d at 409. Upon revisiting the
question, the Court reaffirms its analysis. “While 18 U.S.C.
§ 1595(a) does not define ‘victim,’ a different section of the
federal criminal code ... defines a ‘crime victim’ as ‘a person
directly and proximately harmed as a result of the commission
of a Federal offense.’ This definition accords with ordinary
usage, which recognizes as a victim ‘one that is injured,
destroyed, or sacrificed under any of various conditions.’
Thus, the ‘victims’ of one who obstructs the enforcement
of the TVPA include not just the government, but also
include those who suffered harm because the government's
enforcement efforts were hindered.” Id.
[19] [20] To assert a claim for obstruction under the
TVPA, a plaintiff must show that a defendant (1) knew
of an effort to enforce the TVPA and (2) intentionally
obstructed or attempted to obstruct that enforcement effort.
See United States v. Farah, 766 F.3d 599, 612 (6th Cir.
2014); Deutsche Bank, 671 F. Supp. 3d at 409. 6 Because
Congress enacted Section 1591(d) in 2008 and did not give
that provision retroactive effect, the investigations in Florida
that resulted in Epstein's 2006 guilty plea and his 2007
non-prosecution agreement there cannot support plaintiffs’
claim for obstruction. Hence, the only relevant TVPA
enforcement effort discussed in the amended complaints
is the investigation in the Southern District of New York
that resulted in Epstein's 2019 indictment and arrest. See
BOA Reply at 8. The amended complaints do not plausibly
allege that defendants knew about that investigation before it
became public, but they do plausibly allege that -- in light of
the intense publicity surrounding Epstein's indictment, arrest,
and death -- defendants knew about that investigation once
it was publicized. See BOA Am. Compl. ¶¶ 39-41, 93; BNY
Am. Compl. ¶¶ 52-54, 111, 336.
*14 The question before the Court, then, is whether
the amended complaints plausibly allege that defendants
intentionally obstructed or attempted to obstruct the 2019
investigation once it became public. See Farah, 766 F.3d at
612. The amended complaint against Bank of America clearly
contains allegations to this effect. See BOA Am. Compl. ¶¶
343-357 (alleging that Bank of America “intentionally” and
“deliberately” failed to timely file SARs, including in and
after 2019), ¶¶ 433-434. Accordingly, the Court concludes
that the amended complaint against Bank of America states a
claim for TVPA obstruction.
[21] In contrast, the amended complaint against BNY does
not allege, except in conclusory language, that BNY acted
“intentionally” or “purposeful[ly]” in failing to file SARs.
See BNY Am. Compl. ¶¶ 341-349; see also id. ¶¶ 178,
183-203 (alleging that BNY knew of its obligations and
describing SARs filed in and after 2019). As BNY argues,
see BNY Suppl. Br. at 13, it is not plausible to infer from
the amended complaint's allegations that, to the extent that
BNY untimely filed SARs, it did so to intentionally obstruct
the investigation that became public in 2019. In fact, the
amended complaint alleges that, on August 8, 2019, BNY
filed a SAR in which it reported several hundred suspicious
transfers, which were made over a period of more than six
years and between accounts related to Epstein. BNY Am.
Compl. ¶ 184. That filing -- barely a month after Epstein's
arrest -- is inconsistent with the theory that BNY acted to
intentionally obstruct the investigation of TVPA violations
being conducted in the Southern District of New York even
after that investigation became known. Hence, because the
amended complaint's conclusory statements are undermined
by the facts alleged to support them, the Court concludes that
the amended complaint against BNY does not state a claim
for TVPA obstruction. 7
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B. Counts Five and Six: Negligence Claims
In Counts Five and Six, plaintiffs assert claims for negligence
under New York common law. Count Five alleges that
defendants negligently failed to exercise reasonable care to
prevent physical harm to plaintiffs. Specifically, plaintiffs
assert that, by providing financial and other support for
Epstein's sex trafficking venture, defendants “set forces in
motion that directly and proximately injured and caused
physical harm” to plaintiffs. BOA Am. Compl. ¶ 448; BNY
Am. Compl. ¶ 355. In Count Six, plaintiffs assert that
defendants provided non-routine banking services to Epstein
and his co-conspirators, deliberately ignored information
concerning Epstein's sex trafficking venture, and failed to
comply with regulatory obligations, thereby breaching the
duty of care that they owed plaintiffs. BOA Am. Compl. ¶¶
460-470; BNY Am. Compl. ¶¶ 369-377.
[22] Under New York law, each of these claims is subject
to a three-year statute of limitations. CPLR § 214(5)
(providing three-year statute of limitations for actions to
recover damages for personal injury). A cause of action for
negligence “accrues when the acts or omissions constituting
the negligence produce the injury.” Reznor v. J. Artist Mgmt.,
Inc., 365 F. Supp. 2d 565, 579 (S.D.N.Y. 2005).
*15 Plaintiffs’ negligence claims are thus facially time-
barred because their injuries -- that is, Epstein's sexual abuse
of them -- occurred no later than 2019, the year in which
Epstein was arrested in New York and died. See BOA MOL
at 22-23; BNY MOL at 21.
[23] Plaintiffs contend, however, that their claims are not
time-barred because defendants are equitably estopped from
asserting the statute of limitations as a defense. See BOA
Am. Compl. ¶¶ 10-16 & n.3; BNY Am. Compl. ¶¶ 18-25 &
n.4. Moreover, plaintiffs argue, claims such as Counts Five
and Six should only be dismissed as time-barred where “it
appears beyond doubt that [plaintiffs] can prove no set of
facts” supporting tolling. BOA Opp'n at 17 (quoting Ortiz v.
Cornetta, 867 F.2d 146, 148 (2d Cir. 1989)); BNY Opp'n at
18-19.
[24] [25] [26] [27] In New York, equitable estoppel
“applies where it would be unjust to allow a defendant to
assert a statute of limitations defense.” Zumpano v. Quinn, 6
N.Y.3d 666, 673, 816 N.Y.S.2d 703, 849 N.E.2d 926 (2006). 8
It is an “extraordinary remedy,” Pulver v. Dougherty, 58
A.D.3d 978, 979, 871 N.Y.S.2d 495 (3d Dep't 2009), that
is to be “invoked sparingly and only under exceptional
circumstances,” Gross v. N.Y.C. Health & Hosps. Corp., 122
A.D.2d 793, 794, 505 N.Y.S.2d 678 (2d Dep't 1986). In order
to invoke equitable estoppel, a plaintiff must show that she
has been “induced by fraud, misrepresentations, or deception
to refrain from filing a timely action.” Zumpano, 6 N.Y.3d
at 674, 816 N.Y.S.2d 703, 849 N.E.2d 926. 9 “Moreover,
the plaintiff must demonstrate reasonable reliance on the
defendant's misrepresentations.” Id. These showings must be
made in some detail because, as the New York Court of
Appeals has held, it is “fundamental to the application of
equitable estoppel for plaintiffs to establish that subsequent
and specific actions by defendants somehow kept them from
timely bringing suit.” Id. (emphasis added); see also Twersky
v. Yeshiva Univ., 993 F. Supp. 2d 429, 442-43 (S.D.N.Y.
2014).
*16 Here, plaintiffs have not made “sufficient factual
allegations that each of the requirements of equitable estoppel
is satisfied.” See Sejin Precision Indus. Co., Ltd. v. Citibank,
N.A., 235 F. Supp. 3d 542, 553 (S.D.N.Y. 2016). This is true
in at least four respects:
First, the amended complaints refer generically to
“affirmative misrepresentations” made by defendants, BOA
Am. Compl. ¶ 10; BNY Am. Compl. ¶ 18, but the amended
complaints do not specify any such misrepresentations or
even indicate in what contexts such misrepresentations were
purportedly made. That distinguishes these cases from those
cited by plaintiffs, such as Zimmerman v. Poly Prep Country
Day School, 888 F. Supp. 2d 317, 341-42 (E.D.N.Y. 2012),
where the plaintiffs alleged that the defendant affirmatively
misrepresented certain specified facts regarding their abuser's
standing as the defendant's employee.
Second, the amended complaints allege that various named
and unnamed associates of Epstein attempted to prevent
Doe and other victims “from learning of the [banks’] role”
in Epstein's sex trafficking venture and “from commencing
suit,” BOA Am. Compl. ¶¶ 13-14; BNY Am. Compl. ¶¶
23-24, but the amended complaints do not offer any basis for
imputing these individuals’ alleged conduct to defendants.
Third, to the extent that the amended complaints allege
that defendants intentionally failed to file SARs or take
other steps required by banking regulations, such omissions
are categorically not “affirmative” actions on the part of
defendants that may justify the application of equitable
estoppel. See Sejin Precision Indus., 235 F. Supp. 3d at 553.
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The New York Court of Appeals has specifically held that “[i]t
is not enough that plaintiffs alleged defendants were aware
of [underlying misconduct] and remained silent about it” or
failed to “report abuse by [sex offenders] to law enforcement
officials.” Zumpano, 6 N.Y.3d at 674, 816 N.Y.S.2d 703, 849
N.E.2d 926.
Fourth, plaintiffs allege that both defendants “negotiated with
known victims of Epstein's sex trafficking to settle claims”
and “secure non-disclosure agreements limiting what the
victims could say.” BOA Am. Compl. ¶ 13; BNY Am. Compl.
¶ 21. Even assuming, arguendo, that such evidence would
be admissible for purposes of plaintiffs’ equitable estoppel
arguments, the New York Court of Appeals has expressly
held that a defendant's making “private payments to [victims]
so that the charges would not be publicized” is insufficient
to establish equitable estoppel. Id. at 675, 816 N.Y.S.2d
703, 849 N.E.2d 926; cf. City of Almaty v. Sater, 503 F.
Supp. 3d 51, 68 (S.D.N.Y. 2020) (holding that “a confidential
settlement agreement that prevents one's wrongdoing from
coming to light does not, by itself, amount to the sort of
active concealment necessary for equitable estoppel” but
declining to dismiss untimely claims in light of “a broad
pattern of deceptive conduct designed to frustrate” plaintiffs
from bringing suit).
Because plaintiffs have now had an opportunity to amend
their pleadings in response to defendants’ tolling arguments,
the Court concludes that they can plead no set of facts
supporting tolling. See Ortiz, 867 F.2d at 148. The Court
therefore determines that Counts Five and Six are time-
barred. Accordingly, it need not (and does not) reach the
merits of these claims.
V. Conclusion
*17 For the foregoing reasons, BOA Jane Doe has stated a
claim against Bank of America for TVPA participation and
TVPA obstruction, but not for TVPA perpetration, aiding and
abetting a violation of the TVPA, or negligence. Accordingly,
the Court hereby reaffirms its “bottom-line” Order of January
29, 2026, granting Bank of America's motion to dismiss
Counts Two, Three, Five, and Six but denying that motion as
to Counts One and Four. Further, because BNY Jane Doe has
not stated any of her claims against BNY, the Court reaffirms
the portion of the same Order granting in full BNY's motion
to dismiss the amended complaint against it. And because
the Court has already afforded plaintiffs an opportunity to
amend their complaints, the Court reconfirms that it dismisses
with prejudice Counts Two, Three, Five, and Six of the action
against Bank of America and the entirety of the action against
BNY. See, e.g., Sprague v. Salisbury Bank & Tr. Co., 969 F.3d
95, 101 (2d Cir. 2020).
The Clerk of Court is respectfully directed to enter final
judgment in No. 25 Civ. 8525, dismissing with prejudice the
case against The Bank of New York Mellon Corporation, and
to close that case.
SO ORDERED.
All Citations
--- F.Supp.3d ----, 2026 WL 380385
Footnotes
1 Under relevant laws and regulations, SARs are highly confidential documents that are not commonly
disclosed without government consent. Accordingly, on November 26, 2025, the Court, at plaintiffs’ request,
solicited the views of relevant federal regulators as to whether Bank of America and BNY were prohibited from
producing SARs and associated materials to plaintiffs in these cases. Exercising their exemptive authority,
the regulators subsequently authorized the banks to disclose the requested materials to plaintiffs, subject to
certain conditions. Partly as a result, plaintiffs’ amended complaints, portions of which were redacted in the
public filings, refer in their unredacted forms to certain SARs and related materials that defendants disclosed
pursuant to the regulators’ exercise of exemptive authority. But the Court was furnished with unredacted
copies of plaintiffs’ amended complaints, and it is those that the Court has here considered in ruling on
defendants’ motions. To the very limited extent that this Opinion and Order discusses the contents of any
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documents produced under the regulators’ exemptive authority, the Court hereby exercises its “unfettered
discretion,” to which all parties consented and of which the governmental agencies were made aware, to
disclose such information “in connection with any motion, application, or proceeding that may result in an
order and/or decision by the Court.” See Protective Order, Doe v. Bank of America, N.A., ECF No. 36 ¶ 10;
Doe v. Bank of N.Y. Mellon Corp., ECF No. 26 ¶ 10; see also Gov't of U.S. Virgin Islands v. JPMorgan Chase
Bank, N.A., ––– F. Supp. 3d ––––, ––––, 2025 WL 2990412, at *6 (S.D.N.Y. Oct. 24, 2025) (discussing
analogous protective order).
2 Except where otherwise indicated, all quotations in this Opinion and Order omit citations, quotation marks,
footnotes, brackets, ellipses, and other alterations in source material.
3 Apart from these circumstances, a court must either exclude extrinsic materials from its consideration or
convert the motion to dismiss into a motion for summary judgment and provide the parties with an opportunity
to conduct relevant discovery and submit supporting evidence. See Fed. R. Civ. P. 12(d).
4 The parties vigorously dispute whether BNY's status as a correspondent bank that did not have direct
customer relationships with Epstein and his entities should affect the Court's analysis. Citing a guidance
document incorporated by reference into the amended complaint, BNY argues that it was not under an
obligation to perform “customer due diligence on the customers of their respondent banks when establishing
and maintaining correspondent bank relationships.” BNY Supp. Br. at 7-8. BNY Jane Doe responds that
correspondent banks such as BNY are “subject to the same due diligence requirements as all financial
institutions.” See BNY Supp. Opp'n at 3-4. But the guidance document on which both parties rely, which
was issued by a foreign financial institution, is not binding on this Court and does not, in any case, purport
to describe correspondent banks’ obligations in reference to the TVPA. See Bank of Int'l Settlements,
Correspondent Banking (July 2016), https://www.bis.org/cpmi/publ/d147.pdf (cited at BNY Am. Compl. ¶
150). Moreover, the cases cited by plaintiff concern common law torts, not TVPA participation. See Dubai
Islamic Bank v. Citibank, N.A., 126 F. Supp. 2d 659, 667 (S.D.N.Y. 2000) (denying motion to dismiss
negligence claim against correspondent bank); Tew v. Chase Manhattan Bank, N.A., 728 F. Supp. 1551, 1567
(S.D. Fla. 1990) (denying motion to dismiss fraudulent concealment and misrepresentation claim against
clearing bank). Suffice to say, whatever the legal obligations of a correspondent bank, in this case the routine
services provided by BNY cannot plausibly be read to put BNY on notice of Epstein's misconduct in the same
way as Bank of America's much more direct and special services did.
5 For the same reasons as with respect to Count Two, the Court declines to adopt plaintiffs’ fallback position
that Count Three should be permitted to survive to the extent that plaintiffs have stated a claim for at least
one violation of the TVPA.
6 Plaintiffs contend that they need not allege defendants’ knowledge of a particular investigation or proceeding
in order to assert a claim for TVPA obstruction because Section 1591(d) does not contain a knowledge
requirement. BOA Supp. Opp'n at 12-13; BNY Supp. Opp'n at 13. Plaintiffs attempt to distinguish Farah,
arguing that the court in that case “relied upon” 18 U.S.C. § 1505 rather than Section 1591(d), but that is
incorrect. See Farah, 766 F.3d at 611 (describing elements of “Farah's conviction for obstructing or attempting
to obstruct the child sex trafficking laws,” i.e., the TVPA). Moreover, plaintiffs ignore the “longstanding
presumption, traceable to the common law” that, in enacting criminal statutes, “Congress intends to require
a defendant to possess a culpable mental state,” and, absent contrary language in the civil provision (such
as with regard to certain other § 1595 violations), this carries over to civil claims predicated on the criminal
violation. See Rehaif v. United States, 588 U.S. 225, 228-29, 139 S.Ct. 2191, 204 L.Ed.2d 594 (2019). Upon
careful consideration of the parties’ arguments, the Court reaffirms its prior analysis of the elements of a civil
claim for TVPA obstruction. See Deutsche Bank, 671 F. Supp. 3d at 409; see also Doe 3 v. Indyke, No. 24
Civ. 1204, 2025 WL 2403193, at *7 (S.D.N.Y. Aug. 19, 2025) (adopting same analysis).
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7 To be sure, the amended complaint against Bank of America also contains allegations that the bank filed its
first Epstein-related SAR shortly after Epstein's arrest. See BOA Am. Compl. ¶ 257. What distinguishes the
two amended complaints, however, is (1) that the amended complaint against BNY fails to allege, in more
than conclusory fashion, that the bank deliberately failed to abide by its regulatory obligations, and (2) that
the amended complaint against Bank of America plausibly alleges that the bank continued to delay filing
Epstein-related SARs even with regard to the same entities on whose transactions it reported shortly after
Epstein's arrest. See id. ¶ 258.
8 BNY Jane Doe contends that Zumpano is inapplicable because “the plaintiffs there were aware that abusers
were employees of the defendants and thus could have brought suit or investigated sooner,” whereas BNY
Jane Doe “had no reason to suspect that a financial institution operating behind the scenes was facilitating the
sex-trafficking venture that injured her.” BNY Supp. Opp'n at 15 n.12. But Zumpano’s reasoning is not limited
in this manner. To be sure, in that case the Court of Appeals cited the plaintiffs’ awareness that their abusers
were defendants’ employees as evidence that they “could have brought actions” or “at least investigated
whether a basis for such actions existed sooner.” 6 N.Y.3d at 706, 816 N.Y.S.2d 703, 849 N.E.2d 926. But
the Court of Appeals’ broader holding was that plaintiffs must “establish that subsequent and specific actions
by defendants somehow kept them from timely bringing suit,” a rule that does not turn on the existence (or
absence) of employer-employee relationships. See id.
9 The amended complaints gesture, in footnotes, to the alternative argument that the banks’ “wrongdoing is
inherently self-concealing such that Doe need not plead any affirmative actions” by the banks. BOA Am.
Compl. ¶ 16 n.3; BNY Am. Compl. ¶ 25 n.4. But plaintiffs’ briefs make no mention of this argument and
appear to have abandoned it. In any event, “[w]hether New York recognizes equitable estoppel based on
a ‘self-concealing’ act is an unsettled question,” and the Second Circuit has recently declined to “adopt the
exception to excuse [plaintiffs] from” the “well-established requirement of New York law” that they must allege
“an act of deception, separate from the ones for which they sue, on which an equitable estoppel could be
based.” Koenigsberg v. Bd. of Trs. of Columbia Univ. in City of N.Y., No. 24-2519-cv, 2025 WL 1540252, at
*3 (2d Cir. May 30, 2025). This Court likewise declines to read an exception for inherently self-concealing
behavior into New York law, at least in the context of this case.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Fabrizio v. Rielly, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 18402299
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Ederick FABRIZIO, also known
as Ederick Fabricio, Plaintiff,
v.
C.O. RIELLY; 1 C.O. Oliver;
and C.O. Laster, Defendants.
9:20-CV-0011 (GTS/ML)
|
Signed December 15, 2022
Attorneys and Law Firms
EDERICK FABRIZIO, Pro se Plaintiff, Calle 13-A DD7,
Villa del Rey IV, Caguas, PR 00727.
LETITIA A. JAMES, New York State Attorney General,
STEVE NGUYEN, ESQ., Assistant Attorney General,
Counsel for Defendants, The Capitol, Albany, New York
12224.
ORDER and REPORT-RECOMMENDATION 2
MIROSLAV LOVRIC, United States Magistrate Judge
*1 Currently before the Court, in this civil rights action
filed by Ederick Fabrizio (“Plaintiff”) against C.O. Rielly,
C.O. Oliver, and C.O. Laster (collectively “Defendants”), is
Defendants’ motion for summary judgement pursuant to Fed.
R. Civ. P. 56. (Dkt. No. 60.) For the reasons set forth below, I
recommend that Defendants’ motion for summary judgement
be granted in part and denied in part.
I. RELEVANT BACKGROUND
A. Plaintiff's Complaint
At this juncture, Plaintiff alleges the following four claims:
(1) one claim of excessive force in violation of the Eighth
Amendment and 42 U.S.C. § 1983 against Defendants Rielly
and Oliver based on an incident that occurred on December
9, 2017; (2) a claim of retaliation in violation of the First
Amendment and 42 U.S.C. § 1983 against Defendant Laster
based on an incident that occurred on February 16, 2018; (3)
a claim of retaliation in violation of the First Amendment
and 42 U.S.C. § 1983 against Defendant Oliver based on an
incident that occurred on April 5, 2018; and (4) a claim of
retaliation in violation of the First Amendment and 42 U.S.C.
§ 1983 against Defendant Rielly based on an incident that
occurred on April 6, 2018. (See generally Dkt. Nos. 42, 46.)
B. Defendants’ Statement of Undisputed Facts
Unless otherwise noted, the following facts were asserted and
supported by Defendants in their Statement of Material Facts
and not denied by Plaintiff in his response. (Compare Dkt.
No. 60, Attach. 1 [Defs.’ Statement of Material Facts], with
Dkt. No. 66 [Pl.’s Resp.].) 3
1. At all relevant times, Plaintiff was an incarcerated
individual in the custody of the New York State Department
of Corrections and Community Supervision (“DOCCS”).
2. On January 6, 2020, Plaintiff commenced this action
against DOCCS employees, pursuant to 42 U.S.C. § 1983.
3. Plaintiff's remaining claims include (a) one excessive force
claim against Defendants Rielly and Oliver, and (b) three
retaliation claims against Defendants.
4. At all relevant times, Defendants were corrections officers
employed by DOCCS who worked at the Greene Correctional
Facility (“Greene CF”). 4
*2 5. Plaintiff's excessive force claim against Defendants
Rielly and Oliver relates to an incident that occurred on
December 9, 2017.
6. On December 9, 2017, around 5 p.m., Defendant Rielly
observed Plaintiff stop movement to speak with another
incarcerated individual.
7. Defendant Rielly gave Plaintiff several direct orders to keep
moving, but Plaintiff did not comply. 5
8. To restore order, Defendant Rielly pulled Plaintiff aside and
conducted a pat frisk. 6
9. For safety purposes, Defendant Oliver observed Defendant
Rielly's pat frisk. 7
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*3 10. The search was compliant with DOCCS policy and
Defendant Rielly used no more force than was necessary to
detect contraband. 8
11. The search was completed without incident and Plaintiff
returned to his dorm. 9
12. On December 11, 2017, Plaintiff was examined by
medical staff and an inmate injury report was recorded.
13. During that examination, the nurse did not observe any
visible injuries on Plaintiff. In addition, Plaintiff denied
sustaining any injuries.
14. On December 12, 2017, Plaintiff filed a grievance alleging
that Defendants Rielly and Oliver assaulted him.
15. Plaintiff alleges First Amendment retaliation claims
against Defendants.
16. Plaintiff's retaliation claim against Defendant Laster
pertains to his grievance filed in December 2017, and the
alleged confiscation of his notepad on February 16, 2018.
17. Plaintiff testified that before February 16, 2018, he had no
issues with Defendant Laster.
18. On February 16, 2018, at 10:30 a.m., Defendant Laster
conducted a random search of Plaintiff's cube.
19. Defendant Laster found two items of contraband, which
were recorded on a contraband receipt. Defendant Laster gave
Plaintiff a copy of the contraband receipt.
20. Defendant Laster avers that at no point on February 16,
2018, did she find, confiscate, or make comments about a
notepad.
21. Defendant Laster avers that she was not aware of
Plaintiff's grievance activity.
22. Plaintiff's retaliation claim against Defendant Oliver
pertains to his grievance filed in December 2017, and an
alleged pat frisk on April 5, 2018.
23. On April 5, 2018, Defendant Oliver worked the North
Yard.
24. At no point on April 5, 2018, did Defendant Oliver pat
frisk Plaintiff or direct him to remove his shoes. 10
25. Defendant Oliver contends that he was not aware of
Plaintiff's grievance activity. 11
*4 26. Plaintiff's retaliation claims against Defendant Rielly
pertains to his grievance filed in December 2017, and an
alleged strip search on April 6, 2018.
27. Defendant Rielly contends that at no point on April 6,
2018, did he ride in a van with Plaintiff, conduct a strip search,
or confiscate Plaintiff's gloves and scarf. 12
28. Defendant Rielly contends that he was not aware of
Plaintiff's grievance activity. 13
C. Parties’ Arguments
1. Defendants’ Memorandum of Law
Generally, Defendants argue that Plaintiff's remaining claims
fail as a matter of law based on the record evidence. (Dkt. No.
60, Attach. 6 at 3.) More specifically, with respect to Plaintiff's
excessive force claim against Defendants Rielly and Oliver,
Defendants acknowledge that force was used upon Plaintiff,
but contend that it was necessary to maintain order in light
of Plaintiff's behaviors—that is, “stop[ping] movement” in an
“elevated traffic” area and the “suspicious interaction” with
another inmate. (Id. at 14.) Defendants argue that Plaintiff's
alleged injuries are de minimis and thus demonstrate that the
use of force was “insufficient to rise to a level of constitutional
violation.” (Id. at 15.) In the alternative, Defendants contend
that they are entitled to qualified immunity. (Id. at 15-16.)
With respect to Plaintiff's retaliation claim against Defendant
Oliver, Defendants argue that (1) Defendant Oliver was not
personally involved in the alleged pat frisk on April 5, 2018,
(2) a pat frisk is not an adverse action and Plaintiff suffered no
more than a “few minutes” of discomfort standing on the cold
ground, and (3) there is no evidence of a causal connection
between Plaintiff's protected conduct in December 2017, and
the incident on April 5, 2018. (Dkt. No. 60, Attach. 6 at 7-10.)
With respect to Plaintiff's retaliation claim against Defendant
Rielly, Defendants argue that (1) even if true, Defendant
Rielly's strip search was not adverse, (2) Defendant Rielly was
not involved in Plaintiff's missing gloves and scarf, and (3)
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there is no evidence of a causal connection between Plaintiff's
protected conduct in December 2017, and the incident on
April 6, 2018. (Dkt. No. 60, Attach. 6 at 10-12.) Finally,
Defendants argue that Plaintiff has presented no evidence as
to why Defendant Laster would retaliate against him based on
a grievance he filed against other officers. (Id. at 12.)
2. Plaintiff's Opposition
In response, Plaintiff argues that his claims are “well
supported” by record evidence and that there are material
issues of fact precluding summary judgment. (Dkt. No. 66
at 3.) Plaintiff indicates that he has satisfied the both the
objective and subjective elements necessary for an Eighth
Amendment excessive force claim from December 2017. (Id.)
Likewise, Plaintiff asserts that his First Amendment claims
stemming from February 2018 and April 2018 show that
he engaged in protected conduct and that Defendants took
adverse action against him in response. 14 (Id.)
II. RELEVANT LEGAL STANDARDS
A. Legal Standard Governing A Motion For Summary
Judgment
*5 Under Fed. R. Civ. P. 56, summary judgment is warranted
if “the movant shows that there is no genuine dispute as to
any material fact and that the movant is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is
“genuine” if “the [record] evidence is such that a reasonable
jury could return a verdict for the [non-movant].” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 15 As for
the materiality requirement, a dispute of fact is “material” if
it “might affect the outcome of the suit under the governing
law.... Factual disputes that are irrelevant or unnecessary will
not be counted.” Anderson, 477 U.S. at 248.
In determining whether a genuine issue of material fact exists,
the Court must resolve all ambiguities and draw all reasonable
inferences against the movant. Anderson, 477 U.S. at 255.
In addition, “[the movant] bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of the ... [record] which it believes
demonstrate[s] the absence of any genuine issue of material
fact.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986).
However, when the movant has met its initial burden, the
non-movant must come forward with specific facts showing
a genuine issue of material fact for trial. Fed. R. Civ. P. 56(a),
(c), (e).
Implied in the above-stated burden-shifting standard is the
fact that, where a non-movant willfully fails to respond to a
motion for summary judgment, a district court has no duty to
perform an independent review of the record to find proof of
a factual dispute–even if that non-movant is proceeding pro
se. 16 (This is because the Court extends special solicitude
to the pro se litigant largely by ensuring that he or she has
received notice of the consequences of failing to properly
respond to the motion for summary judgment.) 17 As has
often been recognized by both the Supreme Court and Second
Circuit, even pro se litigants must obey a district court's
procedural rules. 18
Of course, when a non-movant willfully fails to respond to a
motion for summary judgment, “[t]he fact that there has been
no [such] response ... does not ... [by itself] mean that the
motion is to be granted automatically.” Champion v. Artuz, 76
F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the
Court must assure itself that, based on the undisputed material
facts, the law indeed warrants judgment for the movant.
Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical
Grp., Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y. 2001) (Scullin,
C.J.); N.D.N.Y. L.R. 56.1. What the non-movant's failure to
respond to the motion does is lighten the movant's burden.
For these reasons, this Court has often enforced Local Rule
56.1(b) by deeming facts set forth in a movant's statement
of material facts to be admitted, where (1) those facts are
supported by evidence in the record, and (2) the non-movant
has willfully failed to properly respond to that statement 19 –
even when the non-movant was proceeding pro se. 20
*6 Similarly, in this District, where a non-movant has
willfully failed to respond to a movant's properly filed and
facially meritorious memorandum of law, the non-movant is
deemed to have “consented” to the legal arguments contained
in that memorandum of law under Local Rule 7.1(a)(3). 21
Stated another way, when a non-movant fails to oppose a
legal argument asserted by a movant, the movant may succeed
on the argument by showing that the argument possesses
facial merit, which has appropriately been characterized as
a “modest” burden. See N.D.N.Y. L.R. 7.1(a)(3) (“Where a
properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate
entitlement to the relief requested therein....”); Rusyniak
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v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1
(N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases);
Este-Green v. Astrue, 09-CV-0722, 2009 WL 2473509, at
*2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting
cases).
B. Legal Standard Governing Excessive Force Claims
The Eighth Amendment prohibits cruel and unusual
punishment, “including the ‘unnecessary and wanton
infliction of pain’ ” against prisoners. Sims v. Artuz, 230
F.3d 14, 20 (2d Cir. 2000) (quoting Gregg v. Georgia,
428 U.S. 153, 173 (1976)). To succeed on an Eighth
Amendment excessive force claim, “an inmate must prove
two components, one subjective and the other objective.”
Romaine v. Rawson, 140 F. Supp. 2d 204, 210-11 (N.D.N.Y.
2001) (Kahn, J.) (citing Hudson v. McMillan, 503 U.S. 1, 7-8
(1992); Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)).
“The subjective component focuses on the defendant's motive
for his conduct [whereas] [t]he objective component focuses
on the conduct's effect in light of contemporary standards of
decency.” Romaine, 140 F. Supp. 2d at 211 (citing Blyden,
186 F.3d at 262).
More specifically, relative to the subjective test, there must
be a showing that the defendant “had the necessary level of
culpability, shown by actions characterized by ‘wantonness.’
” Blyden, 186 F.3d at 262 (quoting Wilson v. Seiter, 501 U.S.
294, 299 (1991)). “Wantonness” turns on “whether the force
was applied in a good-faith effort to restore discipline, or
maliciously and sadistically to cause harm.” Sims, 230 F.3d
at 20 (quoting Hudson, 503 U.S. at 7); see also Boddie v.
Schneider, 105 F.3d 857, 861 (2d Cir. 1997) (stating that
where “no legitimate law enforcement or penological purpose
can be inferred from the defendant's alleged conduct, the
abuse itself may ... be sufficient evidence of a culpable state
of mind.”). Additionally, the court must “evaluate the need
for the application of force, the relationship between that need
and the amount of force used, the threat ‘reasonably perceived
by the responsible officials,’ and ‘any efforts made to temper
the severity of a forceful response.’ ” Hudson, 503 U.S. at 8
(quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)).
Furthermore, the objective component of the test is “context
specific, turning on contemporary standards of decency.”
Blyden, 186 F.3d at 263 (quoting McMillian, 503 U.S. at 8).
The focus is “on the harm done; but the amount of harm that
must be shown depends on the nature of the claim.” Sims,
230 F.3d at 21 (citing Hudson, 503 U.S. at 8). Indeed, “[n]ot
every push or shove, even if it may later seem unnecessary
in the peace of a judge's chambers, violates a prisoner's
constitutional rights.” Sims, 230 F.3d at 22 (citations and
internal quotations omitted); see also Romaine, 140 F. Supp.
2d at 212 (quoting Romano v. Howarth, 998 F.2d 101, 105
(2d Cir. 1993)); Hudson, 503 U.S. at 10 (“[A]n allegation that
indicates only a de minimis use of force will ‘rarely suffice
to state a constitutional claim’ ... unless the force is the ‘sort
repugnant to the conscience of mankind[.]’ ”).
C. Legal Standard Governing Retaliation Claims
*7 “To prevail on a First Amendment retaliation claim,
an inmate must establish (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 conduct and the
adverse action.” Hayes v. Dahlke, 976 F.3d 259, 272
(2d Cir. 2020) (cleaned up). As the Second Circuit has
repeatedly cautioned, “[c]ourts properly approach prisoner
retaliation claims ‘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
by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)); see
also Phelps v. Kapnolas, 308 F.3d 180, 187 n. 6 (2d Cir. 2002).
“[T]he use of the prison grievance system” is constitutionally
protected conduct under the First Amendment. Gill v.
Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004); see
Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996)
(holding that “retaliation against a prisoner for pursuing
a grievance violates the right to petition the government
for redress of grievances guaranteed by the First and
Fourteenth Amendments and is actionable under § 1983.”).
Furthermore, “adverse action” for the purposes of a retaliation
claim has been defined as “retaliatory conduct that would
deter a similarly situated individual of ordinary firmness
from exercising ... constitutional rights ... [o]therwise the
retaliatory act is simply de minimis and therefore outside the
ambit of constitutional protection.” Davis, 320 F.3d at 353
(citing Dawes, 239 F.3d at 493).
To establish a causal connection between protected activities
and the adverse action, the court may consider a number
of factors, including “(1) the outcome of any hearing
concerning the allegedly retaliatory charges; (2) the inmate's
prior disciplinary record; (3) any statements made by the
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defendant concerning his motivation; and[ ] (4) the temporal
proximity between the protected activity and the defendant's
adverse action.” Williams v. Muller, 98-CV-5204, 2001 WL
936297, at *3 (S.D.N.Y. Aug. 17, 2001) (citing Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) abrogated, in
part, on other grounds by Tangreti v. Bachmann, 983 F.3d
609 (2d 2020)). However, with respect to temporal proximity
at the summary judgment stage, the Second Circuit has
“consistently required some further evidence of retaliatory
animus before permitting a prisoner to proceed to trial on a
retaliation claim.” Washington v. Afify, 681 F. App'x 43, 46
(2d Cir. 2017).
III. ANALYSIS
A. Plaintiff's Excessive Force Claims Against
Defendants Rielly and Oliver
After carefully considering the matter, I recommend that
the Court grant Defendants’ motion for summary judgment
with respect to Plaintiff's excessive force claims against
Defendants Rielly and Oliver for the reasons stated in
Defendants’ memorandum of law. (Dkt. No. 60, Attach. 6 at
13-16.) The Court has considered the record evidence, not
only in a light most favorable to Plaintiff as the non-moving
party, but also in consideration of the special solicitude
afforded to pro se litigants. See Triestman v. Federal Bureau
of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (citations
omitted). Nonetheless, even a non-moving pro se litigant
“must offer some hard evidence showing that [his] version of
the events is not wholly fanciful.” Jeffreys v. City of New York,
426 F.3d 549, 554 (2d Cir. 2005) (citations omitted). Plaintiff
has failed in this regard.
*8 In light of the undisputed facts regarding the incident
on December 9, 2017, it would be reasonable for any
corrections officer—in this case Defendant Rielly—“charged
with directing incarcerated individuals back to their dorms
after chow time,” to initiate at least a pat frisk of Plaintiff
in connection with his suspicious behavior and interaction
with another inmate. (Dkt. No. 60, Attach. 2 at ¶ 8); see
e.g., Alcaide v. Smith, 17-CV-1239, 2019 WL 4621963, at
*3 (N.D.N.Y. Sept. 24, 2019) (Suddaby, C.J.) (finding that
the defendant “possessed reasonable suspicion to initiate a
pat-frisk” where the plaintiff was perceived “to be ‘acting
suspiciously’ while in the line returning from the mess
hall.”); Pizarro v. Bd. of Corrections, 16-CV-2418, 2018 WL
3462512, at *6 (S.D.N.Y. Jul. 17, 2018) (quoting Hudson, 468
U.S. at 529) (“[T]he Supreme Court has held that ‘wholly
random searches are essential to the effective security of penal
institutions[.]’ ”).
Plaintiff was undisputedly “grabbed,” placed against a fence,
and forcefully searched for contraband. (Dkt. No. 60, Attach.
1 at ¶ 8; Dkt. No. 60, Attach. 5 at 69; Dkt. No. 1 at ¶ 54.) At
this juncture, however, the Court rejects Plaintiff's argument
that Defendants lacked “a legal basis to use force against
him.” (See Dkt. No. 1 at ¶ 54.) It is well settled that searching
or “frisking” a prisoner necessarily requires using some
measure of force and, as a necessary security precaution,
courts in this circuit have recognized that corrections officers
may conduct “random pat frisks on free movement inmates
going to or coming from services and programs[.]” Houston
v. Coveny, 14-CV-6609, 2020 WL 1151345, at *5 (W.D.N.Y.
Mar. 9, 2020) (citing Tavares v. City of N.Y., 08-CV-3782,
2011 WL 5877550, at *6 (S.D.N.Y. Oct. 17, 2011) (record
citations omitted)). Nevertheless, the Court must still consider
the relationship between Defendants’ perceived need to use
force and the amount of force actually used on Plaintiff. See
Hudson, 503 U.S. at 8 (citation omitted).
While the lack of serious injury is not dispositive, it is
particularly relevant in this case because there is no genuine
dispute that force was used during an authorized search. See
Hudson, 503 U.S. at 7 (“The absence of serious injury is ...
relevant to the Eighth Amendment inquiry, but does not end
it.”). Plaintiff alleges merely that he initially “felt dizzy”
and that when he returned to his dorm bathroom, he saw a
“laceration” on his forehead, which “fade[d] away” within
a day or two. (Dkt. No. 1 at 76; Dkt. No. 60, Attach. 5 at
75-76.) The Court accepts Plaintiff's characterizations that
his feet were “kicked” apart, that his head was “pushed” and
“rubbed” against the fence, and that he was “smacked” at the
bottom of his face during the search; however, considering
that Plaintiff was undisputedly interrupting a high traffic
area and perceived to be acting suspiciously, and considering
the lack of any significant injuries, it cannot be said that
the force applied was objectively unreasonable. See e.g.,
Robinson v. Henschel, 10-CV-6212, 2014 WL 1257287, at
*6 (S.D.N.Y. Mar. 26, 2014) (“Accepting [the p]laintiff's
description of his hand being ‘slammed’ repeatedly against
the wall, the amount of force [the defendant] applied in doing
so was de minimus.”); Taylor v. N.Y. Dep't of Corr., 10-
CV-3819, 2012 WL 2469856, at *5 (S.D.N.Y. Jun. 27, 2012)
(quoting Hudson, 503 U.S. at 9-10) (“A correction officer's
forcing an inmate's face into a prison wall, though clearly
unpleasant to endure, would not appear ‘repugnant to the
conscience of mankind.’ ”); Vogelfang v. Capra, 889 F. Supp.
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2d 489, 507 (S.D.N.Y. 2012) (collecting cases) (stating that
“where, as here, a plaintiff alleges only a degree of roughness
that is common in prison contexts, and has not claimed a
lasting or even fleeting injury from the defendant's conduct,
courts in this circuit have routinely held that such conduct
is insufficiently serious to support an Eighth Amendment
claim.”); Espinal v. Goord, 00-CV-2242, 2001 WL 476070,
at *13 n. 46 (S.D.N.Y. May 7, 2001) (“[A]llegations that
[officer] hit [inmate] two or three times in the face, causing
his face to turn red, but resulting in no other injuries ...
are insufficient to state an Eighth Amendment claim.”); Aziz
Zarif Shabazz v. Pico, 994 F. Supp. 460, 471 (S.D.N.Y. 1998)
(“[A]lthough kicking an inmate's ankles and feet cannot be
condoned, this use of force is de minimus and insufficient to
rise to the level of a constitutional violation.”);.
*9 To the extent that Plaintiff alleges Defendants stated
“I hate that they got all this [sic] cameras around, all this
[sic] people looking,” such a statement does not elevate an
otherwise reasonable use of force to the level of sadistic or
malicious conduct in violation of the Eighth Amendment.
(See Dkt. No. 1 at ¶ 54.) When viewed in a light most
favorable to Plaintiff, the statement implies that, but for the
cameras and the would-be witnesses walking around in the
area, Defendants may have inflicted further punishment upon
Plaintiff for his actions. While I do not condone Defendants’
alleged statements, under the circumstances of this case, the
conduct falls short of a constitutional violation considering
the legitimate penological goal in searching Plaintiff in
connection with his suspicious behaviors and maintaining
order in a high traffic area.
In the alternative, for the reasons set forth in Defendants’
memorandum of law, I recommend that the Court grant
Defendants’ motion for summary judgment with respect to
Plaintiff's excessive force claims against Defendants Rielly
and Oliver based on the doctrine of qualified immunity. (See
Dkt. No. 60, Attach. 6 at 15-16.)
Accordingly, I recommend that Plaintiff's Eighth Amendment
excessive force claims against Defendants Rielly and Oliver
be dismissed.
B. Plaintiff's Retaliation Claims Against Defendants
Rielly, Oliver, and Laster
After carefully considering the matter, I recommend that the
Court grant Defendants’ motion for summary judgment with
respect to Plaintiff's retaliation claims against Defendants
Rielly and Oliver and deny Defendants’ motion for summary
judgment with respect to Plaintiff's retaliation claim against
Defendant Laster.
1. February 16, 2018 (Defendant Laster)
For purposes of this Report and Recommendation, it is
assumed (without deciding) that the record contains sufficient
evidence with respect to the first two prongs of Plaintiff's
First Amendment retaliation claim against Defendant Laster
because Defendants did not move on those bases. More
specifically, Plaintiff's litigation activities and grievances
against numerous officials at Greene CF constitute protected
conduct. See Johnson v. Eggersdorf, 8 F. App'x 140, 144
(2d Cir. 2001) (holding that a grievance is constitutionally
protected conduct); Graham, 89 F.3d at 80 (holding that the
“filing of a grievance and attempt to find inmates to represent
[other] grievants—is constitutionally protected.”). Moreover,
while a cell search generally does not constitute an adverse
action in the context of a First Amendment retaliation claim,
it is well-established that the unwarranted confiscation of a
prisoner's property does; thus, the alleged taking of Plaintiff's
notepad is a sufficiently adverse action. Yunus v. Jones, 16-
CV-1282, 2019 WL 5196982, at *6 (Baxter, M.J.) (N.D.N.Y.
Jun. 21, 2019), report recommendation adopted by 2019 WL
4010260 (N.D.N.Y. Aug. 26, 2019) (Suddaby, C.J.).
Although Defendant Laster attests that she did not confiscate
or make comments about Plaintiff's notepad on February
16, 2018, and that she was unaware of Plaintiff's grievance
activity (Dkt. No. 60, Attach. 4 at ¶¶ 13-14), crediting
Plaintiff's allegations in their full context, as the Court must,
I find that a genuine dispute of material fact exists regarding
the causal connection between Plaintiff's protected conduct
and Defendant Laster's alleged adverse action on February 16,
2018.
Plaintiff testified to the following events. On February
16, 2018, Defendant Laster read Plaintiff's notepad where
Plaintiff stored information regarding his grievances and
lawsuits. (Dkt. No. 1 at ¶ 81.) Defendant Laster asked Plaintiff
why he kept the notepad and Plaintiff responded that it was
for his ongoing lawsuits. (Id.) Later in the day on February
16, 2018, Defendant Laster made a speech before Plaintiff's
dorm that “everybody was walking on egg shells and that
for anything she was going to make sure that they dead the
late night.” (Id. at ¶ 83 [errors in original].) Defendant Laster
directed Plaintiff to “put that in your book if you want to.” (Id.
at ¶ 84.) Later, Defendant Laster went to Plaintiff's cube
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and asked Plaintiff for his notepad, stating that the sergeant
wanted to see it. (Id. at ¶ 85.) Defendant Laster then took
Plaintiff's notepad and did not return with it, a contraband slip,
or any document indicating that she had taken the notepad.
(Id. at ¶ 86.)
*10 “The fact that there is no evidence that Defendants
made a statement of retaliatory intent is a factor to consider,
but that Plaintiff cannot adduce evidence of such a statement
is not fatal to his claim.” Young v. Shipman, 18-CV-0782,
2020 WL 1329159, at *5 (N.D.N.Y. Mar. 23, 2020) (Sannes,
J.) (citing Gayle v. Gonyea, 313 F.3d 677, 684 (2d Cir.
2002) (rejecting defendants’ argument that plaintiff “failed to
meet his evidentiary burden because he has failed to submit
direct evidence that the [misbehavior] report was filed as a
retaliatory measure”); see also Vaher v. Town of Orangetown,
133 F. Supp. 3d 574, 596 (S.D.N.Y. 2015) (“Direct evidence
of retaliatory intent is not required” to overcome summary
judgment on a First Amendment retaliation claim)).
Moreover, while, as a general matter, it is difficult to establish
one defendant's retaliation for complaints against another
defendant, Plaintiff has adduced evidence that Defendant
Laster reviewed then confiscated his notepad, which
contained important information regarding the grievances and
lawsuits that Plaintiff filed.
Further, “[a] plaintiff can establish a causal connection that
suggests retaliation by showing that protected activity was
close in time to the adverse action.” Espinal v. Goord, 558
F.3d 119, 129 (2d Cir. 2009) (citations omitted). No bright line
test has been drawn “ ‘to define the outer limits beyond which
a temporal relationship is too attenuated to establish a causal
relationship between the exercise of a federal constitutional
right and an allegedly retaliatory action.’ ” Espinal, 558 F.3d
at 129 (quoting Gorman-Bakos v. Cornell Coop. Extension,
252 F.3d 545, 554 (2d Cir. 2001)). The Second Circuit has
held that the passage of “only six months” is sufficient
to support an inference of a causal connection. Id. (citing
Gorman-Bakos, 252 F.3d at 555 (suggesting the lapse of five
months between protected activity and retaliation may show a
causal connection)). Here, the alleged adverse action occurred
approximately two months after Plaintiff's protected conduct
and thus, was within close temporal proximity for purposes
of inferring a causal connection.
On this record, I find that Plaintiff has raised a genuine
issue of material fact as to whether Plaintiff's protected
conduct of, inter alia, filing a grievance against Defendants
Rielly and Oliver “was a substantial or motivating factor
in [Defendant Laster's] decision to” allegedly confiscate
Plaintiff's notepad. See Young v. Shipman, 2020 WL 1329159,
at *5 (finding that the plaintiff had raised a genuine issue of
material fact regarding the causal connection where (1) there
was close temporal proximity between defendant Shipman's
alleged retaliation and plaintiff's grievance against defendant
Sawyer, (2) defendant Sawyer endorsed the allegedly false
misbehavior report against the plaintiff, and (3) defendants
Shipman and Sawyer were allegedly discussing Plaintiff's
prior grievance against defendant Sawyer moments before the
allegedly retaliatory conduct occurred).
As a result, I recommend that Defendants’ motion for
summary judgment with respect to Plaintiff's retaliation claim
against Defendant Laster be denied.
2. April 5, 2018 (Defendant Oliver)
Plaintiff's retaliation claim against Defendant Oliver
regarding the April 5, 2018, pat frisk fails because he was
not subjected to a sufficiently adverse action, and because
Defendant Oliver was not personally involved in the matter.
(Dkt. No. 60, Attach. 5 at 45-46, 86.)
First, courts have found that “pat frisks—even if conducted
for retaliatory reasons—cannot constitute adverse action for
purposes of a First Amendment claim.” Morgan v. Luft, 15-
CV-0024, 2017 WL 4326082, at *5 (N.D.N.Y. Sept. 28, 2017)
(Suddaby, C.J.) (citing Henry v. Annetts, 08-CV-0286, 2010
WL 3220332, at *2 (S.D.N.Y. July 22, 2010); Amaker v.
Fischer, 10-CV-0977, 2014 WL 8663246, at *5 (W.D.N.Y.
Aug. 27, 2014)). Although Plaintiff alleged that, during the
pat frisk, he and another inmate were forced to remove their
shoes and stand on “the freezing cold floor” (Dkt. No. 1
at ¶ 94), he testified that the search lasted only “a few
minutes” (Dkt. No. 60, Attach. 55 at 47-48) and that, after
the search was completed, he and the other incarcerated
individual put their shoes on and “continued the night.” (Id.
at 48.) Considering that pat frisks are a recognized part of
prison life, Plaintiff provides no evidence as to how such
additional, temporary discomfort lasting only a few minutes
could reasonably deter an inmate from further engaging in
First Amendment protected activities. See Henry, 2010 WL
3220332, at *2 (“Cell searches and pat frisks are an ordinary
part of prison life and would not (and do not) deter the average
inmate from continuing to exercise his First Amendment
rights.”).
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*11 Second, the “personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.” Wright v. Smith, 21 F.3d
496, 501 (2d Cir. 1994) (citations and internal quotations
omitted). The plaintiff has the burden to demonstrate that the
defendant “directly participated[ ] in the alleged constitutional
violation.” Gronowski v. Spencer, 424 F.3d 285, 293 (2d Cir.
2005).
During his deposition, Plaintiff testified that, before
Defendant Oliver's arrival, “another officer” directed Plaintiff
and another incarcerated individual to put their hands on
the wall and started to pat frisk them. (Dkt. No. 60, Attach.
5 at 45-46.) Plaintiff testified that when Defendant Oliver
approached, he made a comment that he had a “similar
situation” with Plaintiff in the past. (Id. at 45.) Then the other
officer ordered Plaintiff and the other incarcerated individual
to take their shoes off and continued searching them. (Id.,
pp. 46-48.) Even if a pat frisk conducted on a cold ground
constituted a sufficiently adverse action, Defendant Oliver's
only involvement was making a comment that he had a similar
situation with Plaintiff in the past. Plaintiff testified that the
other officer began the pat frisk before Defendant Oliver
mentioned anything about his prior interactions with Plaintiff.
As a result, I recommend that Plaintiff's First Amendment
retaliation claim against Defendant Oliver be dismissed.
3. April 6, 2018 (Defendant Rielly)
“Whether a strip search constitutes an adverse action for
purposes of a retaliation claim has not been addressed by
many courts in this circuit.” Johnson v. Naqvi, 18-CV-0694,
2021 WL 1723773, at *7 (D. Conn. Apr. 29, 2021). 22
Recently, retaliatory strip searches were addressed in Pizarro
v. Bd. of Corr., 16-CV-2418, 2018 WL 3462512 (S.D.N.Y.
July 17, 2018), where District Judge Richard Sullivan
concluded that an officer's strip search of an inmate did not
qualify as an adverse action where the inmate's entire housing
unit underwent the strip search, and thus, the plaintiff was not
singled out and had not presented any evidence demonstrating
“why a routine and ordinary lawful strip search would deter a
typical prisoner from exercising his or her First Amendment
rights.” Pizarro, 2018 WL 3462512, at *6.
In Johnson v. Naqvi, 18-CV-0694, 2021 WL 1723773, at
*8-9 (D. Conn. Apr. 29, 2021), Senior District Judge Charles
Haight concluded that an officer's strip search of an inmate
qualified as an adverse action where windows permitted other
officers and inmates to view the plaintiff's exposed body
during the search and the search was not ordinary or routine—
as in Pizarro—but instead singled the plaintiff out. Johnson
v. Naqvi, 2021 WL 1723773, at *8-9.
*12 Here, Plaintiff testified that during the search other
officers watched and laughed while speaking with one another
about how Plaintiff “keep[s] going through all of this.” (Dkt.
No. 60, Attach. 5 at 52, 58.) Further, although Plaintiff was
not singled out—because another incarcerated individual was
simultaneously searched in an adjacent room—viewing the
facts in the light most favorable to Plaintiff, it was not a
routine and ordinary strip search. (Id. at 54.) In addition,
Plaintiff alleges that after the search was completed and
he was given his clothes back, his gloves and scarf were
not provided. (Id. at 61.) As a result, for purposes of this
motion, the Court will assume that there is a genuine dispute
of material fact about whether Defendant Rielly's conduct
constituted an adverse action.
Nevertheless, I find that Plaintiff fails to present evidence
establishing a genuine dispute of material fact causally
connecting the incident on April 6, 2018, and his protected
conduct in December 2017.
As set forth above in Part III.B.1. of this Order and Report-
Recommendation, courts have declined to “define the outer
limits beyond which a temporal relationship is too attenuated
to establish a causal relationship,” and the Second Circuit
has held that the passage of “only six months” is sufficient
to support an inference of a causal connection. Espinal,
558 F.3d at 129. Here, approximately four months passed
between Plaintiff's protected conduct and Defendant Rielly's
alleged adverse action. Assuming—without deciding—that
Defendant Rielly's alleged adverse action was close enough
in time such that a causal connection could be inferred,
the Second Circuit has “consistently required some further
evidence of retaliatory animus before permitting a prisoner to
proceed to trial on a retaliation claim.” Washington v. Afify,
681 F. App'x 43, 46 (2d Cir. 2017); see Roseboro v. Gillespie,
791 F. Supp. 2d 353, 370 (S.D.N.Y. 2011) (collecting cases)
(“To be sure, a ‘plaintiff can establish a causal connection
that suggests retaliation by showing that protected activity
was close in time to the adverse action.’ Such circumstantial
evidence of retaliation, however, without more, is insufficient
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to survive summary judgment.”); Ziemba v. Thomas, 390 F.
Supp. 2d 136, 157 (D. Conn. 2005) (“Temporal proximity
alone is not sufficient for the plaintiff's claim to survive
summary judgment.”).
Plaintiff presents no other evidence to support an inference
that Defendant Rielly's actions on April 8, 2018, were
causally connected to Plaintiff's protected conduct in
December 2017. Even construing Plaintiff's testimony that
during the search the other officers were laughing and making
statements that Plaintiff “keep[s] going through all of this,”
he does not elaborate on what the officers meant by the term
“through all of this.” Viewing that allegation in the context of
the record before the Court, this statement seems to refer to
Plaintiff undergoing frequent searches such as the pat frisk on
April 5, 2018, involving another officer and Defendant Oliver
during which, Defendant Oliver allegedly stated that he had
a similar experience with Plaintiff previously. The record
does not contain evidence, from which a reasonable jury
could conclude that Defendant Rielly took any action against
Plaintiff on April 6, 2018, causally connected to Plaintiff's
protected conduct in December 2017.
As a result, I recommend that the Court grant Defendants’
motion for summary judgment with respect to Plaintiff's
retaliation claim against Defendant Rielly.
ACCORDINGLY, it is
ORDERED that the Clerk of the Court is directed to amend
the docket such that Defendant “C.O. Riley” is changed to
Defendant “C.O. Rielly;” and it is further respectfully
RECOMMENDED that Defendants’ motion (Dkt. No. 60)
be GRANTED in part such that Plaintiff's excessive force
and retaliation claims against Defendants Oliver and Rielly
be dismissed, and DENIED in part such that Plaintiff's
retaliation claim against Defendant Laster survives; and it is
further
*13 ORDERED that the Clerk of the Court shall file a copy
of this Order and Report-Recommendation on the parties,
along with copies of the unpublished decisions cited herein
in accordance with the Second Circuit's decision in Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties
have fourteen days within which to file written objections
to the foregoing report. 23 Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)
(1) (Supp. 2013); FED. R. CIV. P. 6(a), 6(d), 72; 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)).
All Citations
Not Reported in Fed. Supp., 2022 WL 18402299
Footnotes
1 In Defendants’ motion for summary judgment (Dkt. No. 60, Attach. 2), Defendants represented to the Court
that the defendant referred to by Plaintiff as “C.O. Riley” is actually “C.O. Rielly.” This representation is
consistent with counsel's acknowledgment of service and notice of appearance for this defendant. (Dkt. Nos.
19, 21.) As a result, the Clerk of the Court is directed to amend the docket sheet accordingly. Any reference
in the Complaint (Dkt. No. 1) to “C.O. Riley” shall be deemed to refer to “C.O. Rielly.”
2 This matter has been referred to the undersigned for a Report and Recommendation by the Honorable Glenn
T. Suddaby, United States District Judge.
3 In accordance with Local Rule 56.1(a), Defendants submitted a Statement of Material Facts (“L.R. 56.1
Statement”), setting forth concise factual assertions supported by specific record citations in individually
numbered paragraphs. (See Dkt. No. 60, Attach. 1.) Instead of directly answering the L.R. 56.1 Statement,
Plaintiff provided responses mirroring the individually numbered paragraphs contained in Defendants’
supporting declarations. (See Dkt. No. 66, pp. 5-8, 11.) Moreover, Plaintiff's responses to the numbered
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paragraphs in Defendants’ supporting declarations failed to provide specific record citations supporting any
purported factual disputes, as required by Local Rule 56.1(b). (See id.) In light of Plaintiff's pro se status, where
Defendants cited to a declaration in support of the fact asserted, the Court considered Plaintiff's response
to the portion of the declaration cited.
4 Although Defendants failed to include a record citation in support of this asserted fact, there is support in the
record for it. (Dkt. No. 60, Attach. 2 at ¶ 3; Dkt. No. 60, Attach. 3 at ¶ 3; see generally Dkt. No. 60, Attach. 4.)
5 Defendants cite to the affidavit of Defendant Rielly in support of this statement of material fact. (Dkt. No. 60,
Attach. 1 at ¶ 6 [citing Dkt. No. 60, Attach. 2 at ¶¶ 9-10].) As set forth above in note 3, although Plaintiff
responds to paragraph 10 of the declaration of Defendant Rielly with the single word, “[d]isagree,” he fails to
include a citation to the record to support his contention that the assertion is in dispute. (Dkt. No. 66 at 7, ¶
10.) As a result, the fact is deemed admitted. Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact ... is
genuinely disputed must support the assertion by ... citing to particular parts of the record ... or ... showing
that the materials cited do not establish the absence ... of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.”); N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant's response shall
mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions
in matching numbered paragraphs.”) (emphasis added); N.Y. Teamsters v. Express Servs., Inc., 426 F.3d
640, 648-49 (2d Cir. 2005) (upholding grant of summary judgment where “[t]he district court, applying Rule
7.1[a][3] strictly, reasonably deemed [movant's] statement of facts to be admitted” because the non-movant
submitted a responsive Rule 7.1[a][3] statement that “offered mostly conclusory denials of [movant's] factual
assertions and failed to include any record citations”); Prindle v. City of Norwich, 15-CV-1481, 2018 WL
1582429, at *2 n.2 (N.D.N.Y. Mar. 27, 2018) (Suddaby, C.J.) (“In this portion of his Rule 7.1 Response,
Plaintiff made a blanket denial of all of the facts in the corresponding paragraph of Defendants’ Rule 7.1
Statement but cited a portion of the record that disputed only one of the facts asserted by Defendants, in
violation of the District's Local Rules of Practice.”); Jamison v. Metz, 865 F. Supp. 2d 204, 207 n.1 (N.D.N.Y.
2011) (Suddaby, J.) (“[W]herever [the pro se] Plaintiff has [wilfully] failed to cite record evidence in support
of his denials of properly supported facts ... the Court has deemed such facts admitted to the extent they are
not clearly in dispute.”), rev'd in part on other grounds, 541 F. App'x 15, 17-19 (2d Cir. 2013).
6 See, supra, note 3. Although Plaintiff responds to paragraph numbers 11-12 of the declaration of Defendant
Rielly with the word “disagree” (Dkt. No. 66 at 7, ¶¶ 11-12), he fails to include a citation to the record to support
his contention that the assertions contained therein are in dispute. As a result, the fact is deemed admitted.
7 See, supra, note 3. Although Plaintiff responds to paragraph numbers 9-10, 14 of the declaration of Defendant
Oliver with the word “disagree” (Dkt. No. 66 at 5, ¶¶ 9-10, 14), he fails to include a citation to the record to
support his contention that the assertions therein are in dispute. As a result, the fact is deemed admitted.
8 See, supra, note 3. Although Plaintiff responds to paragraph number 12 of the declaration of Defendant Oliver
and paragraph numbers 12-13 of the declaration of Defendant Rielly with the word “disagree” (Dkt. No. 66 at
5, ¶ 12; Dkt. No. 66 at 7, ¶¶ 12-13), he fails to include a citation to the record to support his contention that
the assertions therein are in dispute. As a result, the fact is deemed admitted.
9 See, supra, note 3. Although Plaintiff responds to paragraph numbers 11 and 13 of the declaration
of Defendant Oliver and paragraph number 14 of the declaration of Defendant Rielly with the word
“disagree” (Dkt. No. 66 at 5, ¶¶ 11, 13; Dkt. No. 66 at 7, ¶ 14), he fails to include a citation to the record to
support his contention that the assertions therein are in dispute. As a result, the fact is deemed admitted.
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10 See, supra, note 3. Although Plaintiff responds to paragraph number 20 of the declaration of Defendant Oliver
with the word “disagree” (Dkt. No. 66 at 5, ¶ 20), he fails to include a citation to the record to support his
contention that the assertions therein are in dispute. As a result, the fact is deemed admitted.
11 See, supra, note 3. Although Plaintiff responds to paragraph number 21 of the declaration of Defendant Oliver
with the word “disagree” (Dkt. No. 66 at 5, ¶ 21), he fails to include a citation to the record to support his
contention that the assertions therein are in dispute. As a result, the fact is deemed admitted.
12 See, supra, note 3. Although Plaintiff responds to paragraph number 18 of the declaration of Defendant Rielly
with the word “disagree” (Dkt. No. 66 at 7, ¶ 18), he fails to include a citation to the record to support his
contention that the assertions therein are in dispute. As a result, the fact is deemed admitted.
13 See, supra, note 3. Although Plaintiff responds to paragraph number 19 of the declaration of Defendant Rielly
with the word “disagree” (Dkt. No. 66 at 7, ¶ 19), he fails to include a citation to the record to support his
contention that the assertions therein are in dispute. As a result, the fact is deemed admitted.
14 Plaintiff also contends that he has not been able to review certain alleged evidence in connection with this
action, specifically “the entire file from the Office of Special Investigations.” (Dkt. No. 66 at 3.) However,
discovery in this matter closed on January 28, 2022, Plaintiff did not subsequently file a motion to compel
production, and Plaintiff has not filed an affidavit or declaration pursuant to Fed. R. Civ. P 56(d). (See Dkt.
No. 59.)
15 As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue
of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted). As the Supreme Court has
explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
16 Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.) (citing cases).
17 Cusamano, 604 F. Supp. 2d at 426 & n.3 (citing cases).
18 Cusamano, 604 F. Supp. 2d at 426-27 & n.4 (citing cases).
19 Among other things, Local Rule 56.1 (previously Local Rule 7.1[a][3]) requires that the non-movant file a
response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual
assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record
where the factual issue arises. N.D.N.Y. L. R. 56.1.
20 Cusamano, 604 F. Supp. 2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan, 253 F. Supp. 2d 369,
371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to “perform an independent review of
the record to find proof of a factual dispute.”).
21 See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999)
(McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants
in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for
defendants with regard to the claims that the arguments regarded, under Local Rule 7.1(a)(3)) (previously
Local Rule 7.1[b][3]); Devito v. Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y.
Nov. 29, 2004) (McCurn, J.) (deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude
expert testimony as “a concession by plaintiff that the court should exclude [the expert's] testimony” on that
ground).
22 The term “strip search,” as used by the parties, means a search in which the incarcerated individual removes
his clothes and an officer visually inspects his body cavities, including the anus. See DOCCS Directive No.
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4910 at 7. According to DOCCS policy, correction officers can perform a strip search upon determination of
probable cause and authorization from a sergeant or higher-ranking officer. Id. at 8. By contrast, a “body cavity
search” under DOCCS policy means physical examination of an individual's “oral and/or genital cavities”;
DOCCS policy requires that such a search be performed by a medical professional and authorized by the
“Superintendent, Acting Superintendent, or facility Officer of the Day.” Id. at 10-11.
23 If you are proceeding pro se and 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 that 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).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Fabrizio v. Rielly, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 356204
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Ederick FABRIZIO, Plaintiff,
v.
C.O. RIELLY; C.O. Oliver; and C.O. Laster, Defendants.
9:20-CV-0011 (GTS/ML)
|
Signed January 23, 2023
Attorneys and Law Firms
EDERICK FABRIZIO, Plaintiff, Pro Se, Calle 13-A-DD7,
Villa del Rey IV, Caguas, Puerto Rico 00727.
HON. LETITIA A. JAMES, Attorney General for the State
of New York, DAVID C. WHITE, ESQ., Assistant Attorney
General, Counsel for Defendants, The Capitol, Albany, New
York 12224.
DECISION and ORDER
GLENN T. SUDDABY, United States District Judge
*1 Currently before the Court, in this pro se
prisoner civil rights action filed by Ederick Fabrizio
(“Plaintiff”) against the three above-captioned employees
of the New York State Department of Corrections and
Community Supervision (“Defendants”), is United States
Magistrate Judge Miroslav Lovric's Report-Recommendation
recommending that Defendants’ motion for summary
judgment be granted with respect to Plaintiff's excessive force
and retaliation claims against Defendants Rielly and Oliver
and denied with respect to Plaintiff's retaliation claim against
Defendant Laster. (Dkt. No. 69.) Neither party has filed an
objection to the Report-Recommendation, and the deadline
by which to do so has expired. (See generally Docket Sheet.)
After carefully reviewing the relevant papers herein,
including Magistrate Judge Lovric's thorough Report-
Recommendation, the Court can find no clear-error in
the Report-Recommendation: 1 Magistrate Judge Lovric
employed the proper standards, accurately recited the facts,
and reasonably applied the law to those facts. As a result,
the Report-Recommendation is accepted and adopted in its
entirety for the reasons set forth therein.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Lovric's Report-
Recommendation (Dkt. No. 69) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for summary judgment
(Dkt. No. 60) is GRANTED with respect to Plaintiff's
excessive force and retaliation claims against Defendants
Oliver and Rielly (who are terminated from this action), and
DENIED with respect to Plaintiff's retaliation claim against
Defendant Laster.
All Citations
Not Reported in Fed. Supp., 2023 WL 356204
Footnotes
1 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to
only a “clear error” review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing
such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record
in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at
*1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal
quotation marks omitted).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Hendricks v. Mallozzi, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 1129887
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Andrew HENDRICKS, Plaintiff,
v.
Shelley M. MALLOZZI, Director of the Inmate
Grievance Program for DOCCS; Earl Bell,
Superintendent, Clinton Correctional Facility; D.
Holdridge, Deputy Superintendent for Security, Clinton
Correctional Facility; and C. DeLutis, Captain of
Security, Clinton Correctional Facility, Defendants.
9:20-CV-1035 (MAD/ML)
|
Signed 01/14/2022
Attorneys and Law Firms
Andrew Hendricks, Pro Se Plaintiff, Eastern New York
Correctional Facility, Box 338, Napanoch, New York 12458.
BRENDA BADDAM, ESQ., Assistant Attorney General,
LETITIA A. JAMES, Attorney General for the State of New
York Counsel for Defendants, The Capitol, Albany, New York
12224.
REPORT and RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
*1 Currently before the Court, in this civil rights action filed
by Andrew Hendricks (“Plaintiff”) against Shelley Mallozzi,
Earl Bell, D. Holdridge, and C. DeLutis (collectively
“Defendants”), is Defendants’ motion to dismiss for failure
to state a claim upon which relief may be granted pursuant
to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 17.) For the reasons set
forth below, I recommend that Defendants’ motion be granted
in part and denied in part.
I. RELEVANT BACKGROUND
A. Procedural History
On September 3, 2020, Plaintiff commenced this action by
the filing of a Complaint, accompanied by a motion for
leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.)
On October 29, 2020, United States District Judge Mae A.
D'Agostino granted Plaintiff's IFP application and dismissed
the Complaint without prejudice pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1). (Dkt. No. 5.)
On November 18, 2020, Plaintiff filed an Amended
Complaint. (Dkt. No. 8.) On December 23, 2020, Judge
D'Agostino reviewed Plaintiff's Amended Complaint and set
forth the factual allegations therein. (Dkt. No. 9 at 2-4.) Judge
D'Agostino ordered that (1) Plaintiff's Amended Complaint
was accepted for filing with respect to a claim for retaliation
pursuant to the First Amendment and 42 U.S.C. § 1983,
against Defendants, and (2) any other causes of action in the
Amended Complaint were dismissed. (See generally Dkt. No.
9.)
On March 1, 2021, in lieu of an answer, Defendants filed the
pending motion to dismiss pursuant to Fed. R. Civ. P. 12(b)
(6). (Dkt. No. 17.)
B. Parties’ Briefing on Defendants’ Motion to Dismiss
1. Defendants’ Memorandum of Law
Generally, in support of their motion to dismiss, Defendants
assert the following two arguments: (1) Plaintiff's retaliation
claim fails as a matter of law, and (2) Plaintiff failed to allege
the personal involvement of Defendants Holdridge, Bell, and
Mallozzi. (Dkt. No. 17, Attach. 1 at 6-16.)
More specifically, Defendants first argue that Plaintiff's
retaliation claim fails as a matter of law because the Amended
Complaint fails to allege facts plausibly suggesting that
Defendants took an adverse action against Plaintiff or that
a causal connection existed between his protected speech
and the alleged adverse action. (Id. at 8-15.) Defendants
argue that Plaintiff's claim against Defendant DeLutis—
which is premised on grievance that Plaintiff filed against
Correction Officer Ayotte (an unnamed party to this action)
—fails because (a) Plaintiff's conclusory allegation (that
Defendant DeLutis was “sympathetic” towards C.O. Ayotte
for an unknown reason) is insufficient to overcome the
heightened burden of establishing a causal connection of
retaliation by one officer (Defendant DeLutis) on behalf of
another officer (C.O. Ayotte), (b) inmates do not have any
constitutional right to a particular prison job, (c) temporal
proximity alone is insufficient to establish an inference of
retaliation, and (d) Defendant DeLutis's actions were taken
for legitimate, non-retaliatory reasons unrelated to Plaintiff's
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protected activity—namely, a security concern. (Id. at 8-11.)
Defendants argue that Plaintiff's claim against Defendant
Holdridge—which is premised on his alleged approval of
Defendant DeLutis's decision to remove Plaintiff from his
job, a lie that he reviewed confidential documents supporting
Plaintiff's removal from his job, and failure to follow DOCCS
policies and procedures when removing Plaintiff from his job
—fails because (a) inmates do not have any constitutional
right to a particular prison job, (b) temporal proximity alone
is insufficient to establish an inference of retaliation, (c)
Plaintiff's conclusory allegation (that Defendant Holdridge
acted out of sympathy towards C.O. Ayotte for an unknown
reason) is insufficient to overcome the heightened burden
of establishing a causal connection of retaliation by one
officer (Defendant Holdridge) on behalf of another officer
(C.O. Ayotte), and (d) Defendant Holdridge's alleged lie
(that he reviewed security documents that do not exist) and
failure to follow DOCCS policy for removal of an inmate
from his job, are not constitutional violations and thus do
not give rise to liability pursuant to 42 U.S.C. § 1983. (Id.
at 11-13.) Defendants argue that Plaintiff's claim against
Defendants Bell and Mallozzi—which is premised on their
denial of his grievance appeal, failure to properly investigate
his claims, and assertion that Defendant Bell was “deceptive
and misleading” about DOCCS policy—fails because (a)
Plaintiff's conclusory allegation that Defendants Bell and
Mallozzi retaliated against him for filing a grievance against
C.O. Ayotte is insufficient to overcome the heightened burden
of establishing a causal connection of retaliation by one
officer (Defendant Bell or Defendant Mallozzi) on behalf of
another officer (C.O. Ayotte), (b) prisoners do not have a
due process right to a thorough investigation of grievances
and thus, Defendants Bell and Mallozzi's alleged incomplete
investigations are not adverse actions, (c) there is no temporal
proximity between the filing of Plaintiff's grievance against
C.O. Ayotte on October 12, 2017, and the affirmations of
Plaintiff's grievance appeals by Defendants Bell and Mallozzi
on January 18, 2018, and May 8, 2019, respectively. (Id. at
14-15.)
*2 Second, Defendants argue that based on the Second
Circuit decision set forth in Tangretti, Plaintiff must allege
facts plausibly suggesting that Defendants Holdridge, Bell,
and Mallozzi violated his First Amendment rights with
their own individual actions. (Id. at 15-17.) Defendants
argue that the Amended Complaint fails to allege that
Defendants Holdridge, Bell, and Mallozzi were (a) aware
of Plaintiff's protected speech (i.e., the grievance he filed
against C.O. Ayotte), (b) knew the extent of the investigation
into the first grievance filed by Plaintiff, or (c) acted
with retaliatory animus towards Plaintiff because of the
grievance filed against C.O. Ayotte. (Id.) Further, Defendants
argue that Plaintiff's allegations regarding Defendants Bell
and Mallozzi—that they were involved in the affirmation
of Plaintiff's grievance denial—are insufficient to allege
personal involvement. (Id.)
2. Plaintiff's Opposition
Generally, in opposition to Defendants’ motion, Plaintiff
argues that (1) the Amended Complaint alleges facts plausibly
suggesting a claim of retaliation; and (2) the Amended
Complaint plausibly alleges the personal involvement of
Defendants Holdridge, Bell, and Mallozzi. (Dkt. No. 22.)
First, Plaintiff argues that he plausibly alleged a claim of
retaliation against (1) Defendant DeLutis because (a) he
alleged that Defendant DeLutis e-mailed Ms. Hicks telling her
to remove Plaintiff from the tailor shop for no reason other
than to punish Plaintiff for filing a grievance, which was an
adverse action, and (b) there is a causal connection between
Plaintiff's grievance and his removal from the tailor shop
which can be inferred from (i) the temporal proximity of the
two incidents, (ii) Defendant DeLutis's removal of Plaintiff
from the tailor shop before conducting an investigation
into Plaintiff's grievance, and (iii) the fact that DOCCS’
policies and procedures regarding removal of inmates from a
program were not followed when removing Plaintiff from the
tailor shop, (2) he alleged that Defendant Holdridge became
personally involved in the constitutional violation (a) when
he lied about reviewing confidential documents that did not
exist, and (b) with his support of Defendant DeLutis's decision
to remove Plaintiff from the tailor shop, which “showed gross
negligence and demonstrated deliberate indifference,” (3) he
alleged that Defendants Bell and Mallozzi became personally
involved in the constitutional violation when they chose “not
to do what was right” and “remedy the wrong and in doing
so[,] showed gross negligence and demonstrated deliberate
indifference to [Plaintiff's] constitutional rights.” (Dkt. No. 22
at 4-7.)
Second, Plaintiff argues that (1) as supervisors, Defendants
Bell and Mallozzi were personally involved because they
learned of the constitutional violation through Plaintiff's
grievance appeal and failed to rectify the situation, and
(2) Defendant Holdridge was personally involved because
Plaintiff sent him a letter requesting information about
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Plaintiff's removal from the tailor shop and Defendant
Holdridge stated that he reviewed confidential documentation
supporting Plaintiff's removal and that he supported Plaintiff's
removal. (Id.)
II. LEGAL STANDARD GOVERNING MOTIONS TO
DISMISS FOR FAILURE TO STATE A CLAIM
It has long been understood that a dismissal for failure to state
a claim upon which relief can be granted, pursuant to Fed. R.
Civ. P. 12(b)(6), can be based on one 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 Cnty., 549 F. Supp. 2d
204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting
Report-Recommendation on de novo review).
Because such dismissals are often based on the first ground,
a few words regarding that ground are appropriate. Rule
8(a)(2) of the Federal Rules of Civil Procedure 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). In the Court's view, this
tension between permitting a “short and plain statement” and
requiring that the statement “show[ ]” an entitlement to relief
is often at the heart of misunderstandings that occur regarding
the pleading standard established by Fed. R. Civ. P. 8(a)(2).
*3 On the one hand, the Supreme Court has long
characterized the “short and plain” pleading standard under
Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson,
549 F. Supp. 2d at 212, n.20 (citing Supreme Court case). On
the other hand, the Supreme Court has held that, by requiring
the above-described “showing,” the pleading standard under
Fed. R. Civ. P. 8(a)(2) requires that the pleading contain
a 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 (citing Supreme Court
cases) (emphasis added). 1
The Supreme Court has explained that such fair notice has
the important purpose of “enabl[ing] the adverse party to
answer and prepare for trial” and “facilitat[ing] a proper
decision on the merits” by the court. Jackson, 549 F. Supp.
2d at 212, n.18 (citing Supreme Court cases); Rusyniak v.
Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009)
(Suddaby, J.) (citing Second Circuit cases). For this reason,
as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore's Federal
Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example,
numerous Supreme Court and Second Circuit decisions exist
holding that a pleading has failed to meet the “liberal” notice
pleading standard. Rusyniak, 629 F. Supp. 2d at 213, n.22
(citing Supreme Court and Second Circuit cases); 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
turn 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. 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.
As for the nature of what is “plausible,” the Supreme Court
explained that “[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, 129 S. Ct. 1937,
1949 (2009). “[D]etermining whether a complaint states a
plausible claim for relief ... [is] a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.... [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.” Iqbal, 129 S.
Ct. at 1950 [internal quotation marks and citations omitted].
However, while the plausibility standard “asks for more than
a sheer possibility that a defendant has acted unlawfully,” id.,
it “does not impose a probability requirement.” Twombly, 550
U.S. at 556.
*4 Because of this requirement of factual allegations
plausibly suggesting an entitlement to relief, “the tenet that
a court must accept as true all of the allegations contained
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in the complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.”
Iqbal, 129 S. Ct. at 1949. Similarly, a pleading that
only “tenders naked assertions devoid of further factual
enhancement” will not suffice. Iqbal, 129 S. Ct. at 1949
(internal citations and alterations omitted). Rule 8 “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Id. (citations omitted).
However, “in a pro se case, the court must view the
submissions by a more lenient standard than that accorded to
‘formal pleadings drafted by lawyers.’ ” Govan v. Campbell,
289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (Sharpe, M.J.)
(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other
citations omitted). The Second Circuit has opined that the
court is obligated to “ ‘make reasonable allowances to protect
pro se litigants’ ” from inadvertently forfeiting legal rights
merely because they lack a legal education. Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (quoting
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). As a result,
Twombly and Iqbal notwithstanding, the court must continue
to “construe [a complaint] broadly, and interpret [it] to raise
the strongest arguments that [it] suggests.” Weixel v. Bd. of
Educ., 287 F.3d 139, 146 (2d Cir. 2002).
III. ANALYSIS
A. Whether Plaintiff Sufficiently Alleged a First
Amendment Retaliation Claim Against Defendant
DeLutis
After carefully considering the matter, I answer this question
in the affirmative for the reasons set forth below.
A cognizable claim of retaliation pursuant to 42 U.S.C. §
1983 lies when prison officials take an adverse action against
an inmate that is motivated by the inmate's exercise of a
constitutional right, including the free speech provisions of
the First Amendment. See Friedl v. City of N.Y., 210 F.3d
79, 85 (2d Cir. 2000) (“In general, a section 1983 claim will
lie where the government takes negative action against an
individual because of his exercise of rights guaranteed by
the Constitution or federal laws.”). As the Second Circuit
has repeatedly cautioned, however, because such claims are
easily incanted and inmates often attribute adverse action,
including the issuance of misbehavior reports, to retaliatory
animus, courts must approach such claims “with skepticism
and particular care.” Dawes v. Walker, 239 F.3d 489, 491 (2d
Cir. 2001), overruled on other grounds by Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002); accord, Davis v. Goord,
320 F.3d 346, 352 (2d Cir. 2003).
To state a prima facie claim pursuant to 42 U.S.C. § 1983 for
retaliatory conduct, a plaintiff must advance non-conclusory
allegations establishing that (1) the conduct at issue was
protected, (2) the defendants took adverse action against the
plaintiff, and (3) there was a causal connection between the
protected activity and the adverse action–in other words, that
the protected conduct was a “substantial or motivating factor”
in the prison officials’ decision to take action against the
plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247,
251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065,
2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe,
M.J.).
For purposes of this motion, it is undisputed that Plaintiff
engaged in constitutionally protected speech by the filing of
a grievance. (Dkt. No. 17, Attach. 1 at 8); see Davis v. Goord,
320 F.3d at 352-53 (“[T]he filing of prison grievances is a
constitutionally protected activity.”); Flood v. Cappelli, 18-
CV-3897, 2019 WL 3778736, at *7 (S.D.N.Y. Aug. 2, 2019)
(collecting cases) (holding that the filing of a grievance is
protected speech).
*5 I reject Defendants’ argument that the Amended
Complaint fails to allege facts plausibly suggesting that
they took an adverse action against Plaintiff. Although
courts in the Second Circuit have held that “inmates in the
DOC[C]S system do not have any constitutional, statutory,
regulatory, or precedential right to a particular prison job,”
Muhammad v. Warithu-Deen Umar, 98 F. Supp. 2d 337, 345
(W.D.N.Y. 2000) (citing Gill v. Mooney, 824 F.2d 192, 194
(2d Cir. 1987)), courts have also held that terminating a
prisoner's employment is an “adverse action” for purposes
of a First Amendment retaliation claim. Casey v. Pallito,
12-CV-0284, 2016 WL 96157, at *7 (D. Vt. Jan. 7, 2016);
see Logan v. Graham, 18-CV-0291, 2019 WL 8015209, at
*13, n.19 (N.D.N.Y. Nov. 26, 2019) (Lovric, M.J.) (finding
that the firing of the plaintiff from his job as a feed-up
porter constituted an adverse action for purposes of a First
Amendment retaliation claim); Henderson v. Vanderwerff, 13-
CV-1537, 2016 WL 660921, at *4 (N.D.N.Y. Feb. 18, 2016)
(D'Agostino, J.) (holding that the “[p]laintiff's complaint
plausibly alleges that Officer Chuttey was involved in the
adverse action of terminating [the p]laintiff from his prison
job in retaliation for his filing of the grievance against Officer
Richardson.”); Chavis v. Struebel, 317 F. Supp. 2d 232,
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238 (W.D.N.Y. 2004) (noting that “assigning the inmate [to]
less desirable work assignments satisfies the adverse action
requirement” for purposes of a prisoner's First Amendment
retaliation claim); Van Pelt v. Finn, 92-CV-2977, 1993
WL 465297, at *4 (S.D.N.Y. Nov. 12, 1993) (holding that
reassignment of an inmate to a less desirable job with lower
pay constitutes an adverse action).
In considering whether there is a “causal connection between
the protected speech and the adverse action, a court may
consider a number of factors, including any statements
made by the defendant concerning his motivation and the
temporal proximity between the protected activity and the
defendant's adverse action.” Roseboro v. Gillespie, 719 F.
Supp. 2d 353, 366 (S.D.N.Y. 2011). The Second Circuit has
“held that temporal proximity between protected conduct
and an adverse action constitutes circumstantial evidence of
retaliation,” but, at the summary judgment stage, has also
“consistently required some further evidence of retaliatory
animus before permitting a prisoner to proceed to trial on a
retaliation claim.” Washington v. Afify, 681 F. App'x 43, 46 (2d
Cir. 2017); see Ziemba v. Thomas, 390 F. Supp. 2d 136, 157
(D. Conn. 2005) (“Temporal proximity alone is not sufficient
for the plaintiff's claim to survive summary judgment.”).
I also reject Defendants’ argument that the Amended
Complaint fails to allege facts plausibly suggesting a causal
connection between Plaintiff's protected speech on October
12, 2017 (Dkt. No. 8 at ¶ 11), and Defendant DeLutis's alleged
e-mail to Ms. Hicks on October 26, 2017, telling her to
remove Plaintiff from his position in the tailor shop (Dkt. No.
8 at ¶ 27).
First, the Second Circuit has made clear that “temporal
proximity of an allegedly retaliatory [action] to a grievance
may serve as circumstantial evidence of retaliation.” Gayle
v. Gonyea, 313 F.3d 677, 683 (2d Cir. 2002) (citing Colon
v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)); see also
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,
90 (2d Cir. 2015) (holding that, within the context of an
employment discrimination claim, “[a] retaliatory purpose
can be shown indirectly by timing: protected activity followed
closely in time by adverse employment action.”). Although
there is significant case law to support the contention that
temporal proximity alone is insufficient to survive a motion
for summary judgment, Washington v. Afify, 681 F. App'x 43,
46 (2d Cir. 2017), the same is not true at the motion to dismiss
stage. See Roseboro v. Gillespie, 791 F. Supp. 2d 353, 370
(S.D.N.Y. 2011) (collecting cases) (“To be sure, a ‘plaintiff
can establish a causal connection that suggests retaliation
by showing that protected activity was close in time to the
adverse action.’ Such circumstantial evidence of retaliation,
however, without more, is insufficient to survive summary
judgment.”). Defendants cite to Thomas v. Waugh, 13-
CV-0321, 2015 WL 5750945, at *4 (N.D.N.Y. Sept. 30, 2015)
(D'Agostino, J. adopting Report-Recommendation on de novo
review) (citing Slattery v. Swiss Reinsurance Am. Corp.,
248 F.3d 87, 95 (2d Cir. 2001)), which held that “temporal
proximity alone is insufficient to establish an inference of
retaliation.” However, the Second Circuit case relied on by
the Court in Thomas, did not draw such a conclusion. Slattery,
248 F.3d at 95. Instead, the Second Circuit in Slattery, held
that, in the context of an employment case, “[w]here timing is
the only basis for a claim of retaliation, and gradual adverse
job actions began well before the plaintiff ever engaged
in any protected activity, an inference of retaliation does
not arise.” Slattery, 248 F.3d at 95. Here, unlike the facts
presented in Slattery, the Amended Complaint does not allege
facts plausibly suggesting that gradual adverse job actions
began before Plaintiff was removed from his position in the
tailor shop. (See generally Dkt. No. 8.) As a result, I find
that temporal proximity alone is sufficient to infer a causal
connection at the motion to dismiss stage.
*6 Second, the Amended Complaint alleges more than mere
temporal proximity from which, a causal connection could
be inferred. As set forth by Plaintiff in his memorandum
of law, a causal connection could also be inferred based on
Defendants’ alleged failure to follow “DOCCS's policies and
procedures regarding requests for removal and removal of
inmates from program.” (Dkt. No. 22 at 4; accord Dkt. No. 8
at ¶ 34.) While Defendants’ alleged failure to follow DOCCS’
policies and procedures does not “explicitly state an intent
to retaliate, [it] is consistent with and impl[ies] a retaliatory
motive.” Burton v. Lynch, 664 F. Supp. 2d 349, 368 (S.D.N.Y.
2009).
Third, although Plaintiff alleges that Defendant DeLutis took
an adverse action against him on behalf of C.O. Ayotte
and “it is difficult to establish one defendant's retaliation
for complaints against another defendant,” Hare v. Hayden,
09-CV-3135, 2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14,
2011), I find that the Amended Complaint alleges facts
plausibly suggesting a causal connection. More specifically,
Plaintiff alleges that Defendant DeLutis was “in charge of
the investigation” regarding the grievance that Plaintiff filed
against C.O. Ayotte. (Dkt. No. 8 at ¶ 26.) In addition,
the Amended Complaint alleges that (1) Plaintiff filed the
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grievance on October 20, 2017, 2 (2) on October 26, 2017,
Defendant DeLutis sent an e-mail to Ms. Hicks directing
her to remove Plaintiff from the tailor shop for “security
reasons,” and (3) on October 27, 2017, Defendant DeLutis
directed Sergeant Stuart to interview Plaintiff and C.O. Ayotte
about Plaintiff's grievance. (Dkt. No. 8 at ¶¶ 26-27.) Thus,
the Amended Complaint alleges that Defendant DeLutis was
aware of Plaintiff's protected speech (the grievance against
C.O. Ayotte) at the time he took the adverse action against
Plaintiff (directing his removal from the tailor shop) and
that those events occurred in close temporal proximity to
each other. See Young v. Shipman, 18-CV-0782, 2020 WL
1329159, at *4-5 (N.D.N.Y. Mar. 23, 2020) (Sannes, J.)
(finding that the plaintiff alleged facts plausibly suggesting a
causal connection between the plaintiff's protected speech (a
grievance that the plaintiff filed against Defendant Sawyer)
and the adverse action (taken by Defendant Shipman) where
Defendant Shipman was allegedly aware of the plaintiff's
grievance against Defendant Sawyer and the events occurred
in close temporal proximity).
As a result, I recommend that Defendants’ motion to dismiss
the Amended Complaint, arguing that Plaintiff's retaliation
claim fails as a matter of law against Defendant DeLutis, be
denied. 3
B. Whether Plaintiff Alleged Facts Plausibly
Suggesting a Retaliation Claim Against Defendants
Holdridge, Bell, and Mallozzi
For the reasons stated in Defendants’ memorandum of
law, I recommend that Plaintiff's retaliation claim against
Defendants Holdridge, Bell, and Mallozzi be dismissed for
failure to state a claim upon which relief may be granted. The
following is intended to supplement, but not supplant those
reasons.
*7 “It is well settled in this Circuit that ‘personal
involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983.’ ” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)
(quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d
Cir. 1991)). In order to prevail on a section 1983 cause of
action against an individual, a plaintiff must show “a tangible
connection between the acts of a defendant and the injuries
suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
“[D]irect participation as a basis of liability in this context
requires intentional participation in the conduct constituting
a violation of the victim's rights by one who knew of the facts
rendering it illegal.” Provost v. City of Newburgh, 262 F.3d
146, 155 (2d Cir. 2001) (internal quotation marks omitted).
Courts in this circuit routinely hold that “the doctrine of
respondeat superior cannot be applied to section 1983 actions
to satisfy the prerequisite of personal involvement. Therefore,
a prison official may not be found liable for a constitutional
violation merely because of the acts of those under his
control.” Kinch v. Artuz, 97-CV-2419, 1997 WL 576038, at
*2 (S.D.N.Y. Sept. 15, 1997) (citing Colon v. Coughlin, 58
F.3d 865, 874 (2d Cir. 1995); Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994)). Thus, supervisory officials may not be
held liable for their subordinates’ constitutional violations
merely because they are in a position of authority. See Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Colon,
58 F.3d at 874 (holding that the fact that the defendant
occupied a high-ranking position in the New York prison
hierarchy, without more, was insufficient to establish personal
involvement). Before deciding Ashcroft v. Iqbal, 556 U.S. 62
(2009), the Second Circuit held that supervisory personnel
could be considered “personally involved” if
(1) the defendant participated directly in the alleged
constitutional violation;
(2) the defendant, after being informed of the violation
through report or appeal, failed to remedy the wrong;
(3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed
the continuance of such a policy or custom;
(4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts; or
(5) the defendant exhibited deliberate indifference to the
rights of inmates by failing to act on information
indicating that unconstitutional acts were occurring.
Colon, 58 F.3d at 873 (citing Wright, 21 F.3d at 501
(additional citation omitted)).
In Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020), the
Second Circuit addressed how the Supreme Court's decision
in Iqbal affected the standards in Colon for establishing
supervisory liability. Consistent with other circuits, the
Second Circuit concluded that “there is no special rule
for supervisory liability,” and held that a “plaintiff must
plead and prove ‘that each Government-official defendant,
through the official's own individual actions, had violated
the Constitution.’ ” Tangreti, 983 F.3d at 618. The Second
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Circuit explained that, “ ‘the factors necessary to establish a
[§ 1983] violation will vary with the constitutional provision
at issue’ because the elements of different constitutional
violations vary. The violation must be established against
the supervisory official directly.” Id. (quoting Iqbal, 556
U.S. at 676). “District courts discussing Tangreti agree that
the decision invalidated the Colon test and mandates that a
plaintiff must establish a violation against the supervisory
official directly.” Fabrizio v. Smith, 20-CV-0011, 2021 WL
2211206, at *10 (N.D.N.Y. Mar. 10, 2021) (Lovric, M.J.)
(collecting cases), report and recommendation adopted by
2021 WL 2211023 (N.D.N.Y. June 1, 2021) (Suddaby, C.J.).
*8 “In light of Tangreti, [a] plaintiff cannot establish [a
supervisor's] personal involvement based upon the denial of
grievance and/or appeals because it does not plausibly suggest
‘[t]he factors necessary to establish’ a First Amendment ...
claim.” Bryant v. Miller, 18-CV-0494, 2021 WL 5095284, at
*20 (N.D.N.Y. July 22, 2021) (Hummel, M.J.), report and
recommendation adopted by 2021 WL 4272396 (N.D.N.Y.
Sept. 21, 2021) (Suddaby, C.J.); see Fabrizio, 2021 WL
2211206, at *10 (holding that the plaintiff's “attempt to
plead personal involvement based upon the denial of a
grievance and/or appeals, lacks merit because it does not
plausibly suggest ‘[t]he factors necessary to establish’ a
First Amendment retaliation claim.”); Zielinski v. Annucci,
17-CV-1087, 2019 WL 2479616, at *12 (N.D.N.Y. Jan. 8,
2019) (Hummel, M.J.), report and recommendation adopted
by 2019 WL 1305826 (N.D.N.Y. Mar. 22, 2019) (“[I]t is
well-established that the review, denial or affirmance of a
denial of a grievance is insufficient to establish personal
involvement.”); Gomez v. Sepiol, 11-CV-1017SR, 2014
WL 1575872, at *10 (W.D.N.Y. Apr. 11, 2014) (“[T]he
investigation of a grievance alone, is not sufficient to
allege personal involvement in the underlying constitutional
violation.”); Rosales v. Kikendall, 677 F. Supp. 2d 643,
649 (W.D.N.Y. 2010) (holding that the plaintiff failed to
establish the defendant's personal involvement based on
allegations that the defendant investigated the plaintiff's
grievance and concluded that there was no evidence that the
other defendants had retaliated against the plaintiff).
Plaintiff's allegations against Defendants Holdridge, Bell,
and Mallozzi, relate solely to their (a) denial of Plaintiff's
grievance, (b) affirmation of Plaintiff's grievance denial, and/
or (c) affirmation of Defendant DeLutis's removal of Plaintiff
from the tailor shop. (See generally Dkt. Nos. 1, 22.) After
the Second Circuit's ruling in Tangreti, these allegations are
insufficient to plausibly suggest the personal involvement
of Defendants Holdridge, Bell, and Mallozzi. As a result, I
recommend that Defendants’ motion to dismiss with respect
to Defendants Holdridge, Bell, and Mallozzi, be granted.
ACCORDINGLY, it is hereby respectfully
RECOMMENDED that Plaintiff's Amended Complaint
(Dkt. No. 8) be DISMISSED with respect to Defendants
Holdridge, Bell, and Mallozzi for failure to state a claim upon
which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)
(6); and it is further respectfully
RECOMMENDED that Defendants’ motion to dismiss
(Dkt. No. 17) be GRANTED to the extent that it sought
dismissal of Defendants Holdridge, Bell, and Mallozzi
because the Amended Complaint failed to state a claim upon
which relief may be granted, and DENIED to the extent that
it sought dismissal of the Amended Complaint with respect to
Defendant DeLutis; and it is further
ORDERED that the Clerk of the Court shall file a copy of this
Report-Recommendation on the docket of this case and serve
a copy upon the parties in accordance with the local rules. 4
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health
& Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2022 WL 1129887
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Footnotes
1 Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v. Artuz, 95-CV-4768,
1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.
1995) (McAvoy, C.J.).
2 Plaintiff also alleges that this grievance was filed on October 12, 2017. (Compare Dkt. No. 8 at ¶ 11, with
Dkt. No. 8 at ¶ 26.) For purposes of this motion, the Court need not resolve whether Plaintiff's grievance was
filed on October 12, 2017, or October 20, 2017.
3 To the extent that Defendants claim that they would have taken the same action against Plaintiff absent the
protected conduct, at this stage of the litigation, the Court is unable, on a motion to dismiss, to resolve such
factual disputes. See Carl v. Dirie, 09-CV-0724, 2010 WL 3338566, at *6 (N.D.N.Y. March 29, 2010) (Treece,
M.J.) (denying the defendant's motion to dismiss retaliation claim due to factual issues surrounding whether
the defendants would have taken the same actions in the absence of retaliatory motives).
4 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with
Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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2022 WL 856885
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Andrew HENDRICKS, Plaintiff,
v.
Shelley M. MALLOZZI, Director of the Inmate
Grievance Program for DOCCS; Earl Bell,
Superintendent, Clinton Correctional Facility; D.
Holdridge, Deputy Superintendent for Security, Clinton
Correctional Facility; and C. Delutis, Captain of
Security, Clinton Correctional Facility, Defendants.
9:20-CV-1035 (MAD/ML)
|
Signed 03/23/2022
Attorneys and Law Firms
ANDREW HENDRICKS, 07-B-0269, Eastern New York
Correctional Facility, Box 338, Napanoch, New York 12458,
Plaintiff, Pro Se.
BRENDA BADDAM, AAG, NEW YORK STATE
ATTORNEY GENERAL, The Capitol, Albany, New York
12224, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, United States District Judge:
I. INTRODUCTION
*1 Plaintiff commenced this civil rights action on September
3, 2020, alleging violations of his constitutional rights while
he was incarcerated at Clinton Correctional Facility. See
Dkt. No. 1. On October 29, 2020, this Court dismissed the
complaint without prejudice pursuant to 28 U.S.C. §§ 1915(e)
(2)(B) and 1915A(b)(1). See Dkt. No. 5. Plaintiff filed a
proposed amended complaint on November 18, 2020. See
Dkt. No. 8. In his amended complaint, Plaintiff asserted that
Defendants C. DeLutis, K. Hicks, D. Holdridge, Earl Bell,
and Shelley M. Mallozzi violated his First and Fourteenth
Amendment rights when they removed him from his prison
job in retaliation for filing a grievance against a correctional
officer. See id. at ¶¶ 24-57. On December 23, 2020, this
Court accepted the amended complaint for filing only to the
extent that it asserted First Amendment retaliation claims
against Defendants DeLutis, Holdridge, Bell, and Mallozzi,
and dismissed the remaining claims without prejudice. See
Dkt. No. 9.
On March 1, 2021, in lieu of an answer, Defendants filed
a motion to dismiss the amended complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
See Dkt. No. 17. On January 14, 2022, Magistrate Judge
Lovric issued a Report and Recommendation recommending
that Defendants’ motion to dismiss be granted with respect
to Defendants Holdridge, Bell, and Mallozzi, and denied
with respect to Defendant DeLutis. See Dkt. No. 28. On
January 31, 2021, Plaintiff objected to the Report and
Recommendation to the extent it recommended granting
Defendants’ motion to dismiss with respect to Defendants
Holdridge, Bell, and Mallozzi. See Dkt. No. 29. Currently
before the Court is Magistrate Judge Lovric's Report and
Recommendation and Plaintiff's objection thereto.
II. BACKGROUND
The amended complaint alleges that, on October 11, 2017,
Plaintiff was given an “Inmate Counseling Notification” by a
nonparty civilian employee of the tailor shop where Plaintiff
worked. See Dkt. No. 8 at ¶ 10. Two days later, Plaintiff
submitted a grievance to the Inmate Grievance Resolution
Committee (“IGRC”) alleging that nonparty Corrections
Officer (“C.O.”) Ayotte was harassing him in connection with
the Inmate Counseling Notification. See id. at ¶ 11. Defendant
DeLutis “was in charge of the investigation[ and] directed
[a nonparty C.O.] to interview [Plaintiff] and C.O. Ayotte
about the incident, which he did, separately, on 10/27/17.” Id.
at ¶ 26. On November 1, 2017, at the request of Defendant
DeLutis, Plaintiff was removed from his position at the tailor
shop for confidential “security reasons.” Id. at ¶ 29.
On December 11, 2017, Plaintiff filed a second grievance
complaining that his removal from his tailor shop job was
done in retaliation for the prior grievance he had filed against
C.O. Ayotte. See id. at ¶ 30. The IGRC denied the second
grievance, stating that Plaintiff was removed from the tailor
shop for legitimate security concerns. See id. at ¶ 47. The
IGRC told Plaintiff he was not allowed to know what those
security reasons were because “it might jeopardize the safety
and security of the facility.” Id.
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*2 Plaintiff appealed the IGRC's decision to the
Superintendent, Defendant Bell, on December 27, 2017.
Id. Defendant Bell ultimately denied the appeal and found
Plaintiff's retaliation claim to be “unsubstantiated” because
Plaintiff was removed from the tailor shop for legitimate
security concerns. Id. at ¶ 48. In rendering this decision,
Defendant Bell allegedly quoted the “Policy, Procedures and
Standards for Programing Inmates manual” and stated that
“[a] change in program can be made at anytime, ‘in person or
in writing ....’ ” Id. at ¶ 49. The amended complaint claims that
this quote was “nothing less than a shameless and unattractive
attempt to be deceptive and misleading” because the manual
“clearly does not say ‘in person or in writing’ in that particular
section.” Id.
Plaintiff appealed Defendant Bell's determination to the
DOCCS Central Office Review Committee (“CORC”), where
Defendant Mallozzi was serving as Director. Id. CORC
upheld Defendant Bell's determination, finding that Plaintiff
was removed from his position at the tailor shop for security
reasons. See id. at ¶ 53.
Meanwhile, on November 27, 2017, Plaintiff sent a letter
to Defendant Holdridge requesting information about his
removal from the tailor shop. See id. at ¶ 43. Defendant
Holdridge replied the same day, “stating that he had reviewed
the ‘confidential documentation supporting [Plaintiff's]
removal’ and that he ... also support[ed] the removal” because
it was “in the best interest of the facility.” Id. The complaint
asserts that Defendant Holdridge's statement that he reviewed
confidential documentation is a “deliberate and deceptive
untruth” because Plaintiff “F.O.I.L. requested any and all
documents” related to his removal and the only thing he
received was a copy of an email from Defendant DeLutis
requesting the removal. Id. at ¶¶ 44-45.
On March 1, 2021, Defendants DeLutis, Holdridge, Bell, and
Mallozzi filed a motion to dismiss the amended complaint
pursuant to Fed. R. Civ. P. 12(b)(6). See Dkt. No. 17. On
January 14, 2022, Magistrate Judge Lovric issued a Report
and Recommendation recommending, as relevant here, that
the motion to dismiss be granted as to Defendants Holdridge,
Bell, and Mallozzi. See Dkt. No. 28. Magistrate Judge
Lovric found that—after the Second Circuit's recent ruling
in Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020)—
a “ ‘plaintiff cannot establish [a supervisor's] personal
involvement based upon the denial of grievance and/or
appeals because it does not plausibly suggest “[t]he factors
necessary to establish” a First Amendment ... claim.’ ” Dkt.
No. 28 at 17 (quotation omitted). Noting that “Plaintiff's
allegations against Defendants Holdridge, Bell, and Mallozzi,
relate[d] solely to their (a) denial of Plaintiff's grievance,
(b) affirmation of Plaintiff's grievance denial, and/or (c)
affirmation of Defendant DeLutis's removal of Plaintiff from
the tailor shop,” Magistrate Judge Lovric concluded that
Plaintiff's “allegations are insufficient to plausibly suggest
the personal involvement of Defendants Holdridge, Bell, and
Mallozi.” Id.
Plaintiff's raises two objections to Magistrate Judge Lovric's
Report and Recommendation. First, Plaintiff argues that
the amended complaint alleged facts beyond the denial or
affirmation of the denial of a grievance that plausibly support
the personal involvement of Defendants Holdridge, Bell, and
Mallozzi in Plaintiff's retaliation claim. See Dkt. No. 29 at ¶¶
1-4. Second, Plaintiff argues that it was unfair for Magistrate
Judge Lovric to rely on Tangreti in rejecting his retaliation
claims because Tangreti was decided after Plaintiff filed his
amended complaint. See id. at ¶¶ 5-7. Plaintiff also asks for
permission to file a second amended complaint should the
Court choose to adopt the Report and Recommendation. See
id. at ¶ 7.
III. DISCUSSION
A. Standard of Review
*3 A motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure
tests the legal sufficiency of the party's claim for relief. See
Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation
omitted). In considering the legal sufficiency, a court must
accept as true all well-pleaded facts in the pleading and draw
all reasonable inferences in the pleader's favor. See ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007) (citation omitted). This presumption of truth, however,
does not extend to legal conclusions. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). Although a
court's review of a motion to dismiss is generally limited to
the facts presented in the pleading, the court may consider
documents that are “integral” to that pleading, even if they are
neither physically attached to, nor incorporated by reference
into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d
391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner,
Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead “a
short and plain statement of the claim,” see Fed. R. Civ. P. 8(a)
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Hendricks v. Mallozzi, Not Reported in Fed. Supp. (2022)
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(2), with sufficient factual “heft to ‘sho[w] that the pleader
is entitled to relief.’ ” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 557 (2007) (quotation omitted). Under this standard, the
pleading's “[f]actual allegations must be enough to raise a
right of relief above the speculative level,” id. at 555 (citation
omitted), and present claims that are “plausible on [their]
face.” Id. at 570. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556
U.S. at 678 (citation omitted). “Where a complaint pleads
facts that are ‘merely consistent with’ a defendant's liability,
it ‘stops short of the line between possibility and plausibility
of “entitlement to relief.” ’ ” Id. (quoting [Twombly, 550 U.S.]
at 557). Ultimately, “when the allegations in a complaint,
however true, could not raise a claim of entitlement to relief,”
Twombly, 550 U.S. at 558, or where a plaintiff has “not
nudged [his] claims across the line from conceivable to
plausible, the[ ] complaint must be dismissed.” Id. at 570.
“[I]n a pro se case, the court must view the submissions
by a more lenient standard than that accorded to ‘formal
pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).
The Second Circuit has opined that the court is obligated to
“make reasonable allowances to protect pro se litigants” from
inadvertently forfeiting legal rights merely because they lack
a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90,
95 (2d Cir. 1983)).
When a party files specific objections to a magistrate judge's
report-recommendation, the district court makes a “de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection
is made.” 28 U.S.C. § 636(b)(1). However, when a party
files “[g]eneral or conclusory objections or objections which
merely recite the same arguments [that he presented] to the
magistrate judge,” the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011
WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and
footnote omitted). After the appropriate review, “the court
may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1).
B. Plaintiff's Objections
Plaintiff's first objection is that his amended complaint has
alleged facts that plausibly suggest the personal involvement
of Defendants Holdridge, Bell, and Mallozzi in the events
that form the basis of his retaliation claim. See Dkt. No.
29 at ¶ 1. Specifically, Plaintiff asserts that the amended
complaint states that Defendant Holdridge “took it upon
himself to get personally involved” by responding to a letter
written by Plaintiff and “stating that he [had] reviewed the
confidential documentation supporting [Plaintiff's] removal
from the Tailor Shop ... knowing full well that no such
documentation even existed.” Id. at ¶ 2 (citing Dkt. No.
8 at ¶¶ 42-45). Plaintiff also asserts that Defendant Bell
did more than “merely deny [his] grievance on appeal”;
claiming that he “reconfigur[ed] and manipulat[ed] the
wording of DOCCS policy,” showing “blatant disregard for
and deliberate indifference to [Plaintiff's] First Amendment
rights.” Id. at ¶ 4 (citing Dkt. No. 8 at ¶¶ 46-51). Finally,
Plaintiff argues that the amended complaint states that
Defendant Mallozzi “just rubber stamped [D]efendant Bell's
decision,” making him “just as liable as [D]efendant Bell.” Id.
*4 The Court finds that Defendants’ motion to dismiss
should be granted with respect to Defendants Holdridge,
Bell, and Mallozzi. As Magistrate Judge Lovric found, “[i]t
is well settled that affirming the outcome of a disciplinary
hearing does not in itself constitute personal involvement
in any potential due process violation,” or other alleged
underlying unconstitutional conduct. Abdul-Halim v. Bruyere,
No. 9:19-CV-740, 2021 WL 3783087, *3 (N.D.N.Y. Aug.
26, 2021); see also Smart v. Annucci, No. 19-CV-7908, 2021
WL 260105, *5 (S.D.N.Y. Jan. 26, 2021) (“Failing to correct
another officer's violation does not suffice”); Gomez v. Sepiol,
No. 11-CV-1017, 2014 WL 1575872, *10 (W.D.N.Y. Apr.
11, 2014) (“[T]he investigation of a grievance alone, is not
sufficient to allege personal involvement in the underlying
constitutional violation”); Rosales v. Kikendall, 677 F. Supp.
2d 643, 649 (W.D.N.Y. 2010) (holding that the plaintiff
failed to establish the defendant's personal involvement based
on allegations that the defendant investigated the plaintiff's
grievance and concluded that there was no evidence that the
other defendants had retaliated against the plaintiff). Contrary
to Plaintiff's argument, Defendant Holdridge's reliance on
confidential documentation and Defendant Bell's alleged
error when quoting DOCCS policy do not transform their
review of his second grievance into personal involvement
in the underlying constitutional violation (the allegedly
retaliatory removal of Plaintiff from his job); nor do these
alleged actions amount to separate constitutional violations.
Plaintiff next objects to the application of the Second Circuit's
holding in Tangreti v. Bachmann, 983 F.3d 609 (2d Cir.
2020), 1 to this case. See Dkt. No. 29 at ¶¶ 5-7. Specifically,
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Hendricks v. Mallozzi, Not Reported in Fed. Supp. (2022)
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Plaintiff notes that the amended complaint was filed before
the decision in Tangreti was issued, and argues that it
would be “unfair” for the Court to apply Tangreti where he
“obviously had no knowledge that the [prior] test would soon
be invalidated” at the time he wrote the amended complaint.
Id. at ¶ 7. The Court finds that Tangreti is properly applied to
this case. “[T]he general rule [is] that a court must apply the
law as it exists at the time it renders its decision.” Walsche v.
First Inv'rs Corp., 981 F.2d 649, 653 (2d Cir. 1992) (citations
omitted); see also Kremer v. Chem. Const. Corp., 623 F.2d
786, 788-89 (2d Cir. 1980), aff'd, 456 U.S. 461 (1982)
(“The general rule of long standing is that judicial precedents
normally have retroactive as well as prospective effect”).
The narrow exception to this general principle identified in
Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), does not apply
here. 2
Accordingly, the Court adopts Magistrate Judge Lovric's
Report and Recommendation in its entirety.
C. Leave to Amend
Finally, Plaintiff requests leave to file a second amended
complaint should the Court choose to adopt Magistrate Judge
Lovric's Report and Recommendation. See Dkt. No. 29 at ¶
7. In general, a court should not dismiss a pro se litigant's
complaint without granting leave to amend at least once “
‘when a liberal reading of the complaint gives any indication
that a valid claim might be stated.’ ” Shomo v. City of New
York, 579 F.3d 176, 183 (2d Cir. 2009) (quoting Gomez v.
USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)).
However, an opportunity to amend is not required where the
plaintiff has previously been afforded such an opportunity.
See Coleman v. brokersXpress, LLC, 375 Fed. Appx. 136,
137 (2d Cir. 2010); see also Bivona v. McLean, No. 9:19-
CV-0303, 2019 WL 2250553, *5 (N.D.N.Y. May 24, 2019);
Abascal v. Hilton, No. 04-CV-1401, 2008 WL 268366, *8
(N.D.N.Y. Jan. 13, 2008), aff'd, 357 Fed. Appx. 388 (2d Cir.
2009).
*5 Here, Plaintiff has already been afforded one opportunity
to amend the complaint and has not made any specific
showing as to how he would cure the defects that
have persisted if given a second opportunity to amend.
Accordingly, Plaintiff's request for leave to file a second
amended complaint is denied.
IV. CONCLUSION
After carefully reviewing the Report and Recommendation,
the entire record in this matter, and the applicable law, the
Court hereby
ORDERS that Magistrate Judge Lovric's Report and
Recommendation (Dkt. No. 28) is ADOPTED in its entirety
for the reasons set forth herein; and the Court further
ORDERS that Defendants’ motion to dismiss (Dkt. No. 17)
is GRANTED in part and DENIED in part; 3 and the Court
further
ORDERS that Defendants Holdridge, Bell, and Mallozzi are
terminated as Defendants in this action; and the Court further
ORDERS that the Clerk of the Court shall serve a copy
of this Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 856885
Footnotes
1 In Tangreti, the Second Circuit addressed how the Supreme Court's decision in Iqbal affected the standards
for establishing supervisory liability. Ultimately, the Second Circuit held that, to establish a constitutional
violation against a supervisor, a plaintiff “must plead and prove that [the supervisor-]defendant, through [his
or her] own individual actions, has violated the constitution.” Tangreti, 983 F.3d at 618 (internal quotation
marks omitted).
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Hendricks v. Mallozzi, Not Reported in Fed. Supp. (2022)
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2 “To qualify for purely prospective application, a decision ‘must establish a new principle of law, either by
overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression
whose resolution was not clearly foreshadowed’ ” and “the court must then ‘weigh’ the issue of whether
retroactive application would conflict with or further the purposes of the new rule and whether it would produce
inequitable results.” Walsche, 981 F.2d at 653 (quoting Chevron Oil Co., 404 U.S. at 106-07).
3 Plaintiff's First Amendment retaliation claim remains against Defendant DeLutis.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1998 WL 832708
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Theodore HUDSON, Plaintiff,
v.
Christopher ARTUZ, Warden Philip
Coombe, Commissioner Sergeant
Ambrosino Doctor Manion Defendants.
No. 95 CIV. 4768(JSR).
|
Nov. 30, 1998.
Attorneys and Law Firms
Mr. Theodore Hudson, Great Meadow Correctional Facility,
Comstock.
Alfred A. Delicata, Esq., Assistant Attorney General, New
York.
MEMORANDUM AND ORDER
BUCHWALD, Magistrate J.
*1 Plaintiff Theodore Hudson filed this pro se action
pursuant to 42 U.S.C. § 1983 on April 26, 1995. Plaintiff's
complaint alleges defendants violated his constitutional rights
while he was an inmate at Green Haven Correctional
Facility. 1 Plaintiff's complaint was dismissed sua sponte by
Judge Thomas P. Griesa on June 26, 1995 pursuant to 28
U.S.C. § 1915(d). On September 26, 1995, the Second Circuit
Court of Appeals vacated the judgment and remanded the case
to the district court for further proceedings.
The case was reassigned to Judge Barbara S. Jones on
January 31, 1996. Defendants moved to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(c) on November 25, 1996.
Thereafter, the case was reassigned to Judge Jed S. Rakoff
on February 26, 1997. On February 26, 1998, Judge Rakoff
granted defendants' motion to dismiss, but vacated the
judgment on April 10, 1998 in response to plaintiff's motion
for reconsideration in which plaintiff claimed that he never
received defendants' motion to dismiss.
By Judge Rakoff's Order dated April 14, 1998, this case was
referred to me for general pretrial purposes and for a Report
and Recommendation on any dispositive motion. Presently
pending is defendants' renewed motion to dismiss. Plaintiff
filed a reply on July 6, 1998. For the reasons discussed
below, plaintiff's complaint is dismissed without prejudice,
and plaintiff is granted leave to replead within thirty (30) days
of the date of the entry of this order.
FACTS
Plaintiff alleges that he was assaulted by four inmates in the
Green Haven Correctional Facility mess hall on March 14,
1995. (Complaint at 4.) He alleges that he was struck with
a pipe and a fork while in the “pop room” between 6:00
p.m. and 6:30 p.m. (Complaint at 4–5.) Plaintiff contends
that the attack left him with 11 stitches in his head, chronic
headaches, nightmares, and pain in his arm, shoulder, and
back. (Id.) Plaintiff also states that Sergeant Ambrosino
“failed to secure [the] area and separate” him from his
attackers. (Reply at 5.) Plaintiff's claim against Warden Artuz
is that he “fail [sic] to qualify as warden.” (Complaint at
4.) Plaintiff names Commissioner Coombes as a defendant,
alleging Coombes “fail [sic] to appoint a qualified warden
over security.” (Amended Complaint at 5.) Plaintiff further
alleges that Dr. Manion refused to give him pain medication.
(Complaint at 5.) Plaintiff seeks to “prevent violent crimes”
and demands $6,000,000 in damages. (Amended Complaint
at 5.)
Defendants moved to dismiss the complaint, arguing that: (1)
the Eleventh Amendment bars suit against state defendants
for money damages; (2) the plaintiff's allegations fail to state
a claim for a constitutional violation; (3) the defendants are
qualifiedly immune from damages; and (4) plaintiff must
exhaust his administrative remedies before bringing this suit.
DISCUSSION
I find that plaintiff's complaint runs afoul of Rules 8 and
10 of the Federal Rules of Civil Procedure and dismiss the
complaint without prejudice and with leave to amend. Federal
Rule 8 requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The purpose of this Rule “is to
give fair notice of the claim being asserted so as to permit the
adverse party the opportunity to file a responsive answer [and]
prepare an adequate defense.” Powell v. Marine Midland
Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v.
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Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Califano, 75 F.R.D. 497, 498 (D.D.C.1977)); see Salahuddin
v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (stating that the
“principal 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”).
*2 Rule 10 of the Federal Rules of Civil Procedure requires,
inter alia, that the allegations in a plaintiff's complaint be
made in numbered paragraphs, each of which should recite,
as far as practicable, only a single set of circumstances.
Moore's Federal Practice, Vol. 2A, ¶ 10.03 (1996). Rule
10 also requires that each claim upon which plaintiff seeks
relief be founded upon a separate transaction or occurrence.
Id. 2 The purpose of Rule 10 is to “provide an easy mode
of identification for referring to a particular paragraph in a
prior pleading.” Sandler v. Capanna, 92 Civ. 4838, 1992 WL
392597, *3 (E.D.Pa. Dec.17, 1992) (citing 5 C. Wright &
A. Miller, Federal Practice and Procedure, § 1323 at 735
(1990)).
A complaint that fails to comply with these pleading rules
“presents far too heavy a burden in terms of defendants'
duty to shape a comprehensive defense and provides no
meaningful basis for the Court to assess the sufficiency of”
a plaintiff's claims. Gonzales v. Wing, 167 F.R.D. 352, 355
(N.D.N.Y.1996). It may therefore be dismissed by the court.
Id.; see also Salahuddin v. Cuomo, 861 F.2d at 42 (“When
a complaint does not comply with the requirement that it
be short and plain, the court has the power to, on its own
initiative, ... dismiss the complaint”). Dismissal, however, is
“usually reserved for those cases in which the complaint is
so confused, ambiguous, vague, or otherwise unintelligible
that its true substance, if any, is well disguised.” Id. In those
cases in which the court dismisses a pro se complaint for
failure to comply with Rule 8, it should give the plaintiff leave
to amend when the complaint states a claim that is on its
face nonfrivolous. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d
Cir.1995).
In determining whether a nonfrivolous claim is stated, the
complaint's allegations are taken as true, and the “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.” Conley v.. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99,
2 L.Ed.2d 80 (1957). The complaint of a pro se litigant is to
be liberally construed in his favor when determining whether
he has stated a meritorious claim. See Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Even if it
is difficult to determine the actual substance of the plaintiff's
complaint, outright dismissal without leave to amend the
complaint is generally disfavored as an abuse of discretion.
See Salahuddin, 861 F.2d at 42–42; see also Doe v. City of
New York, No. 97 Civ. 420, 1997 WL 124214, at *2 (E.D.N.Y.
Mar.12, 1997).
Here, plaintiff's pro se complaint fails to satisfy the
requirements of Federal Rules 8 and 10. The complaint is
often illegible and largely incomprehensible, scattering what
appear to be allegations specific to plaintiff within a forest
of headnotes copied from prior opinions. Defendants have
answered with a boilerplate brief, which is perhaps all a
defendant can do when faced with such a complaint. The
Court is left with an insurmountable burden in attempting to
make a reasoned ruling on such muddled pleadings.
*3 Although plaintiff's complaint is substantially
incomprehensible, it appears to plead at least some claims
that cannot be termed frivolous on their face. For example,
plaintiff clearly alleges that inmates assaulted him and that
Dr. Manion refused to provide him medical attention. He also
appears to assert that Sergeant Ambrosino failed to protect
him from the attack or take steps to prevent future attacks.
(Plaintiff's Reply at 5). It is well established that an inmate's
constitutional rights are violated when prison officials act
with deliberate indifference to his safety or with intent to
cause him harm. Hendricks v. Coughlin, 942 F.2d 109 (2d
Cir.1991). It is similarly well established that an inmate's
constitutional rights are violated when a prison doctor denies
his request for medical care with deliberate indifference to
the inmate's serious medical needs. Estelle v. Gamble, 429
U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hathaway v.
Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied, 513 U.S.
1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Although
plaintiff provides few facts to support his allegations, I
disagree with defendants' assertion that outright dismissal is
appropriate because it “appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.” Defendant's Memorandum at 5 (quoting
Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d
80 (1957)).
Because plaintiff's complaint does not comply with Rules 8
and 10, it is hereby dismissed without prejudice, and plaintiff
is granted leave to replead within thirty (30) days of the date
of the entry of this Order. In drafting his second amended
complaint, plaintiff is directed to number each paragraph and
order the paragraphs chronologically, so that each incident in
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Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
which he alleges a constitutional violation is described in the
order that it occurred. Plaintiff is also directed to specifically
describe the actions of each defendant that caused plaintiff
harm, and to do so in separate paragraphs for each defendant.
Plaintiff's complaint shall contain the facts specific to the
incidents plaintiff alleges occurred, and not any facts relating
to any case that has been decided previously by a court of law.
Plaintiff's complaint shall also contain a clear statement of the
relief he seeks in addition to monetary damages.
CONCLUSION
For the reasons set forth above, plaintiff's complaint is
dismissed without prejudice, and plaintiff is granted leave to
replead within thirty (30) days of the date of the entry of this
Order.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 1998 WL 832708
Footnotes
1 Plaintiff is presently incarcerated at Sullivan Correctional Facility.
2 Rule 10 states:
(b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered
paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set
of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim
founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a
separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01398-BKS-ML Document 60 Filed 04/15/26 Page 86 of 106

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Disagreement Recognized by United House of Prayer for All People v.
Therrien Waddell, Inc., D.C., March 26, 2015
647 F.3d 419
United States Court of Appeals, Second Circuit.
L–7 DESIGNS, INC., Plaintiff–Appellant,
v.
OLD NAVY, LLC, Defendant–Appellee.
Docket No. 10–573–cv
|
Argued: Feb. 7, 2011.
|
Decided: June 1, 2011.
Synopsis
Background: Manager of design services and intellectual
property rights filed action against retailer alleging wrongful
termination and trade disparagement to its claims for breach
of contract, breach of the implied covenant of good faith and
fair dealing, and fraud. Retailer counterclaimed. The United
States District Court for the Southern District of New York,
Denny Chin, J., 2010 WL 157494 and 2010 WL 532160,
dismissed action. Plaintiff appealed.
Holdings: The Court of Appeals, Shira A. Scheindlin, District
Judge, of the United States District Court for the Southern
District of New York, sitting by designation, held that:
[1] manager stated claim that retailer had breached duty to
negotiate licensing agreement in good faith and
[2] wrongful termination claim had been stated.
Affirmed in part, vacated in part, and remanded.
Procedural Posture(s): On Appeal; Motion to Dismiss;
Motion to Dismiss for Failure to State a Claim.
West Headnotes (17)
[1] Federal Civil Procedure Matters
considered
On a motion for judgment on the pleadings, a
court considers the complaint, the answer, any
written documents attached to them, and any
matter of which the court can take judicial notice
for the factual background of the case. Fed.Rules
Civ.Proc.Rule 12(c), 28 U.S.C.A.
796 Cases that cite this headnote
[2] Federal Civil Procedure Matters
considered
On a motion for judgment on the pleadings,
a complaint is deemed to include any written
instrument attached to it as an exhibit, materials
incorporated in it by reference, and documents
that, although not incorporated by reference, are
integral to the complaint.
747 Cases that cite this headnote
[3] Federal Civil Procedure Matters
considered
On motion for judgment on the pleadings, email
exhibits were “attached” to answer, even if they
were only “part of” counterclaims that were filed
in same document. Fed.Rules Civ.Proc.Rules
10(c), 12(c), 28 U.S.C.A.
20 Cases that cite this headnote
More cases on this issue
[4] Federal Civil Procedure Matters
considered
Emails of which plaintiff had notice well before
defendant attached them to its answer because
plaintiff sent or received them were “integral”
to negotiation exchange that plaintiff identified
as basis for its complaint, and thus could be
considered by court on motion for judgment on
the pleadings. Fed.Rules Civ.Proc.Rules 10(c),
12(c), 28 U.S.C.A.
190 Cases that cite this headnote
More cases on this issue
[5] Federal Courts Judgment on the pleadings
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L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
A district court's decision to grant a motion for
judgment on the pleadings is reviewed de novo.
Fed.Rules Civ.Proc.Rule 12(c), 28 U.S.C.A.
18 Cases that cite this headnote
[6] Federal Civil Procedure Judgment on the
Pleadings
Federal Civil Procedure Determination of
Motion
Federal Civil Procedure Matters deemed
admitted
When deciding a motion for judgment on
the pleadings, the same standard applicable to
dismissals pursuant to a motion to dismiss for
failure to state a claim upon which relief can be
granted is employed; thus, all factual allegations
in the complaint are accepted as true and all
reasonable inferences are drawn in the plaintiff's
favor. Fed.Rules Civ.Proc.Rule 12(b)(6), (c), 28
U.S.C.A.
740 Cases that cite this headnote
[7] Contracts Agreement to make contract in
future; negotiations in general
Under New York law, parties who enter into
binding preliminary agreements accept a mutual
commitment to negotiate together in good faith
in an effort to reach final agreement; these
agreements do not commit the parties to reach
their ultimate contractual objective, but, instead,
they create an obligation to negotiate the open
issues in good faith in an attempt to reach the
objective within the agreed framework.
17 Cases that cite this headnote
More cases on this issue
[8] Contracts Agreement to make contract in
future; negotiations in general
Under New York law, parties who enter
into binding preliminary agreements may not
renounce the deal, abandon the negotiations, or
insist on conditions that do not conform to the
preliminary agreement.
16 Cases that cite this headnote
More cases on this issue
[9] Contracts Agreement to make contract in
future; negotiations in general
In effect, an agreement to agree under New York
law buys a party an assurance that the transaction
will falter only over a genuine disagreement, thus
allowing a party strapped for time or money to
go ahead with arrangements with a sufficient
degree of confidence in the outcome; the parties
may abandon the transaction as long as they
have made a good faith effort to close the deal
and have not insisted on conditions that do not
conform to the preliminary writing.
11 Cases that cite this headnote
More cases on this issue
[10] Contracts Sufficiency of allegations to
show breach
Federal Civil Procedure Contract cases in
general
To state a claim for breach of contract for failure
to negotiate in good faith, a plaintiff must allege
the specific instances or acts that amounted to the
breach; generalized allegations and grievances
will not suffice to survive a motion for judgment
on the pleadings. Fed.Rules Civ.Proc.Rule 12(c),
28 U.S.C.A.
36 Cases that cite this headnote
[11] Damages Breach of contract
Damages Breach of contract
On a claim under New York law for breach of
contract for failure to negotiate in good faith,
out-of-pocket costs incurred in the course of
good faith partial performance are appropriate,
although lost profits are not available where no
agreement is reached.
49 Cases that cite this headnote
[12] Copyrights and Intellectual
Property Performance and breach
Manager of design services and intellectual
property rights stated claim that retailer had
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L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
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breached duty under New York law to negotiate
licensing agreement in good faith on allegations
that retailer did not participate in negotiations
for nine months and never provided single
substantive comment with respect to draft license
at any time in particular year.
More cases on this issue
[13] Copyrights and Intellectual
Property Performance and breach
Manager of design services and intellectual
property rights stated claim that retailer had
breached duty under New York law to
negotiate licensing agreement in good faith
on allegations that retailer had made repeated
material representations that it would negotiate
terms of license agreement in good faith, which it
subsequently learned were false, such as retailer's
assurances to manager that its legal team already
was working on licensing agreement template,
and its multiple promises to get back to manager,
which either never happened or only occurred
after substantial delay.
2 Cases that cite this headnote
More cases on this issue
[14] Copyrights and Intellectual
Property Performance and breach in
general
Manager of design services and intellectual
property rights stated claim that retailer had
breached duty under New York law to negotiate
licensing agreement in good faith on allegations
that retailer had proposed terms it knew to be in
bad faith and economically unfair to manager,
believing they would be rejected, and then
reneged when manager did accept.
More cases on this issue
[15] Copyrights and Intellectual
Property Performance and breach
Design service provider stated wrongful
termination claim under New York law on
allegations that retailer's termination letter
provided only notice of termination, effective
immediately, although agreement had required
notice of material breach, 30 days' opportunity to
cure, failure to cure material breach, and notice
of termination.
4 Cases that cite this headnote
More cases on this issue
[16] Federal Courts Altering, amending,
modifying, or vacating judgment or order;
proceedings after judgment
Motions for reconsideration are generally
reviewed under an abuse of discretion standard.
7 Cases that cite this headnote
[17] Federal Courts Pleading
A denial of leave to amend that is based on a legal
interpretation, such as for futility, is reviewed de
novo. Fed.Rules Civ.Proc.Rule 15, 28 U.S.C.A.
3 Cases that cite this headnote
Attorneys and Law Firms
*421 Virginia R. Richard (Lori J. Van Auken on the
briefs), Winston & Strawn LLP, New York, NY, for Plaintiff–
Appellant.
Bruce P. Keller (Shannon R. Selden on the brief), Debevoise
& Plimpton LLP, New York, NY, for Defendant–Appellee.
Before: DENNIS JACOBS, Chief Judge, PETER W. HALL,
Circuit Judge, SHIRA A. SCHEINDLIN, * District Judge.
Opinion
SHIRA A. SCHEINDLIN, District Court Judge:
Plaintiff–Appellant L–7 Designs (“L–7”) appeals from a
judgment on the pleadings of the United States District
Court for the Southern District of New York (Denny Chin,
Judge ), entered on January 21, 2010, dismissing five counts
asserted in L–7's Complaint (the “Complaint” or “Compl.”),
each arising out of a Creative Services Agreement (the
“Agreement”) entered into between L–7 and Defendant–
Appellee Old Navy (“Old Navy”) in September of 2007. We
conclude that the District Court erred in dismissing Count
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III against Old Navy for failure to negotiate in good faith an
alleged agreement to develop and launch a TODD OLDHAM
branded line of merchandise (the “Branded Line”) to be sold
exclusively in Old Navy stores. The District Court also erred
in dismissing Count I for declaratory judgment that Old Navy
wrongfully terminated the parties' Agreement under which L–
7's principal, Todd Oldham, was to provide design services
to Old Navy. Accordingly, we affirm in part and vacate in
part the District Court's judgment, and we remand for further
proceedings; in so doing we reverse in part the order of the
District Court that dismissed the Complaint and reinstate the
Complaint to the extent provided in this Opinion.
BACKGROUND 1
I. Materials Properly Considered on a
Motion for Judgment on the Pleadings
One of the critical issues in this appeal is whether the District
Court properly considered not only the Complaint, Old Navy's
Answer, and the written documents attached to the Complaint
in deciding Old Navy's Rule 12(c) motion, but also five
email exhibits to Old Navy's Counterclaims—exhibits that
were “attached” to Old Navy's Answer only by virtue of the
*422 fact that its Answer and Counterclaims were filed in
the same document. L–7 argues the District Court improperly
considered the exhibits without converting Old Navy's 12(c)
motion to one for summary judgment, as required by Rule
12(d).
[1] [2] [3] [4] On a 12(c) motion, the court considers
“the complaint, the answer, any written documents attached
to them, and any matter of which the court can take judicial
notice for the factual background of the case.” Roberts v.
Babkiewicz, 582 F.3d 418, 419 (2d Cir.2009). “A complaint
is [also] deemed to include any written instrument attached
to it as an exhibit, materials incorporated in it by reference,
and documents that, although not incorporated by reference,
are ‘integral’ to the complaint.” Sira v. Morton, 380 F.3d 57,
67 (2d Cir.2004) (citations omitted) (quoting Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002)). There
is no question that the email exhibits were “attached” to
Old Navy's Answer, even if they were only “part of” Old
Navy's Counterclaims. See Fed.R.Civ.P. 10(c) (“a copy of a
written instrument that is an exhibit to a pleading is a part of
the pleading for all purposes”) (emphasis added). Moreover,
these emails—of which L–7 had notice well before Old Navy
attached them to its Answer (because L–7 sent or received
them)—were “integral” to the negotiation exchange that L–
7 identified as the basis for its Complaint. See Sira, 380
F.3d at 67 (document not expressly cited in complaint was
“incorporated into the pleading because [it] was integral to
[plaintiff's] ability to pursue” his cause of action); Chambers,
282 F.3d at 153 (document “integral” to complaint where
complaint “relie[d] heavily upon its terms and effect”)
(quotation marks omitted); Cortec Indus., Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir.1991) (necessity of translating
motion into one under Rule 56 “largely dissipated” where
plaintiff had “actual notice” of information in documents and
“relied upon [them] in framing the complaint”). “Plaintiffs'
failure to include matters of which as pleaders they had
notice and which were integral to their claim—and that
they apparently most wanted to avoid—may not serve as a
means of forestalling the district court's decision on [a 12(b)
(6) ] motion.” Cortec, 949 F.2d at 44. For these reasons,
in reviewing de novo Old Navy's motion for judgment on
the pleadings, we draw all facts—which we assume to be
true unless contradicted by more specific allegations or
documentary evidence—from the Complaint and from the
exhibits attached thereto, 2 and we also consider the emails
attached to Old Navy's Counterclaims. See Blue Tree Hotels
Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide,
Inc., 369 F.3d 212, 222 (2d Cir.2004) (discrediting allegation
“belied” by letters attached to the complaint); Hirsch v. Arthur
Andersen & Co., 72 F.3d 1085, 1092 (2d Cir.1995) (“General,
conclusory allegations need not be credited ... when they are
belied by more specific allegations of the complaint.”). The
facts thus derived, viewed in the light most favorable to L–
7, are as follows.
II. The Parties
L–7's principal, Todd Oldham, is a world famous artist,
fashion and graphic designer, photographer, writer, and
television personality. He formed L–7 in 1989 to manage
his design services and intellectual property rights, including
eight U.S. federal registrations for the mark TODD
OLDHAM. “[A] luminary in the fashion and design industry
for over twenty years,” Oldham is “considered one of
the most important designers of fashion and *423 home
furnishings working today” and “the singular talent behind
the internationally famous TODD OLDHAM brand.” Compl.
¶ 8. For more than a decade, Oldham and L–7 have
collaborated on a variety of TODD OLDHAM branded
merchandise. 3
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Old Navy, a subsidiary of Gap Inc., operates a chain of retail
apparel stores, with more than a thousand stores throughout
the United States and Canada. For at least the last five years,
Old Navy has been suffering declining sales. One of its
strategies for increasing sales has been to increase its appeal
to younger consumers.
III. The Agreement
In the spring of 2007, L–7 approached Old Navy to discuss
the possibility of entering into a relationship with L–7, and
Old Navy, “enthusiastic about this possibility,” ultimately
requested that Oldham become the company's new Design
Creative Director. Id. ¶ 26. In order to induce Oldham to
join Old Navy's design team, Old Navy proposed to introduce
a TODD OLDHAM branded line of clothing, and to pay
royalties to L–7 in the form of five percent of the Branded
Line's sales. Faced with continuing declining sales, Old Navy
pushed Oldham to enter into an agreement quickly so that it
could publicly announce both Oldham's appointment as Old
Navy's Design Creative Director and also the launching of the
Branded Line.
On September 21, 2007, the parties entered into the
Agreement, 4 under which L–7 was to perform certain
“Services” and provide certain “Deliverables,” as set forth in
a “Scope of Work” (the “SOW”) attached to the Agreement.
Agreement § 1. Under the SOW, Oldham would provide
design services for Old Navy for three years in exchange for
an annual “fee” of $2 million; in addition, Oldham would
receive a guaranteed bonus of $0.5 million in year one and,
in years two and three, 1.25 percent of the year's incremental
sales (not to exceed $6 million). SOW §§ 1, 2. Section
5 provided that during the term of the Agreement, “either
party may terminate this Agreement, effective immediately
upon notice thereof, in the event of a material breach of this
Agreement that remains uncured after thirty (30) days written
notice of the breach to the other party.”
IV. The Licensing Agreement
Section 5 of the SOW, entitled “Todd Oldham Branded Line,”
provided as follows:
a. In September 2007, the parties will announce publicly
that Todd Oldham/[L–7] shall be serving as Design
Creative Director of Old Navy and that it is the intent of the
parties to develop and launch a line of products that will
bear TODD OLDHAM Marks to be sold exclusively at Old
Navy stores at a future time.
b. [L–7] and Old Navy acknowledge and agree that the
specific terms and conditions related to this proposed
line of products bearing TODD OLDHAM Marks are
to be negotiated and agreed upon by the parties in a
separate agreement. The parties plan to enter into a separate
agreement related to these products by October 1, 2008.
c. The parties agree that this separate agreement will
contain at least the following: (1) royalty fees paid to [L–
7] of 5% of Old Navy's retail sales for this particular line
only (not all Old Navy products) and (2) agreement and
final *424 approval by both Old Navy and [L–7] as to the
collections and products to be sold by Old Navy.
On September 21, 2007, Old Navy announced via a press
release that it intended to launch the Branded Line. On
October 3, 2007, Monika Fahlbusch (the Old Navy executive
assigned to the Branded Line) emailed Vital Vayness (L–7's
representative) to “recommend we plan to begin [discussion
on the license agreement for the Branded Line] in our new
fiscal year—say in April? We have until October so there is no
rush....” Ex. 19. Thereafter, L–7 and Oldham performed their
obligations under the Agreement, and Old Navy executives
publicly and privately praised Oldham's performance as
Design Creative Director.
V. April–October 2008 Negotiations
On April 2, 2008, L–7 (Vayness) “initiated negotiations to
finalize” the licensing agreement for the Branded Line by
emailing Fahlbusch (Old Navy) L–7's standard form license
agreement and a term sheet that outlined a three-year initial
term and annual guaranteed minimum royalties (the “April
Proposal”). Compl. ¶ 44. The email suggested that Old Navy
“formulate [its] initial thoughts, needs and objectives” and
then “present to [Oldham] in [M]ay” while Fahlbusch (Old
Navy), Vayness (L–7), and Old Navy's attorney “begin work
on the language of the contract.” Ex. 17.
Commencing in May 2008, Old Navy made “material
representations” that were “false, as [L–7] subsequently
learned.” Compl. ¶ 47; accord Ex. 19. For example in
May of 2008, Fahlbusch (Old Navy) assured Vayness (L–7)
that she was “already working with our legal team on the
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licensing agreement template.” Ex. 19. But throughout the
late spring and summer of 2008, L–7 repeatedly followed
up with Fahlbusch and Old Navy's Executive Vice President,
Douglas Howe, seeking feedback on the April Proposal and
on a “redirection” Old Navy was taking in its “approach,”
with little or no followup. Exs. 19–20. During one meeting in
June of 2008 at which Oldham (L–7), Howe (Old Navy), and
Tom Wyatt (another Old Navy executive) were present, Old
Navy proposed postponing discussions of the Branded Line.
Nevertheless, on June 12, 2008, Vayness (L–7) indicated to
Fahlbusch (Old Navy) that “things are proceeding in the right
direction with the branded line.” Ex. 19.
In a late July 2008 email, Fahlbusch (Old Navy) suggested
that the reason for Old Navy's delay in getting back to L–
7 was that “next steps” on the Branded Line license would
be “impacted by who is named President.” Id. Vayness (L–
7) responded the same day, reminding Fahlbusch (Old Navy)
that “we have a provision in the contract calling for the license
agreement to be entered into by October 1st.” Id.
On September 2, 2008, Vayness (L–7) emailed Fahlbusch
(Old Navy) seeking Old Navy's feedback on the terms set
forth in L–7's April 2008 email, indicating that L–7 was
“ready to discuss [11 points] as early as possible.” Ex. 20. L–
7 followed up with emails and telephone calls to Fahlbusch
(Old Navy) on September 7, 9, and 10, 2008. On September
10, 2008, Fahlbusch (Old Navy) recommended that Oldham
start working “directly” with Howe “as it seems we all have
a different understanding of the numerous conversations in
recent months related to the branded line.” Id.
On September 30, 2008, Wyatt (Old Navy) advised L–7 in
a telephone call for the first time that Old Navy wished to
postpone the signing of a license for the Branded Line “
‘indefinitely.’ ” Compl. *425 ¶ 52 (quoting Wyatt). 5 In
response, L–7 stated that it expected Old Navy to provide
it with definitive dates to restart negotiations, enter into
the licensing agreement, and launch the Branded Line, and
compensation for the postponement of the initial October 1,
2008 signing date. Old Navy failed to provide a response
within a week as promised.
VI. Fall 2008 Notice of Breach and Demand for Damages
On October 7, 2008, L–7 advised Old Navy's in-house
counsel that Old Navy was in material breach of the
Agreement for failing to negotiate in good faith. See Ex.
23. Counsel for Old Navy responded a week later, stating
Old Navy's view that the Agreement “does not obligate Old
Navy to enter into a separate license agreement for Todd
Oldham branded products” and that although Old Navy did
not “foreclose the possibility of engaging in discussions about
Todd Oldham branded products in the future if business
conditions permit, [Old Navy is] not currently in a position
to make a commitment to any such future discussions.” Ex.
24. The next day, Wyatt, then President of Old Navy, told
Oldham that Old Navy was “ ‘very, very sorry’ but because
of economic conditions, Old Navy could not follow through
with the promised license for a TODD OLDHAM branded
line of apparel to be carried exclusively in Old Navy stores.”
Compl. ¶ 55.
After waiting thirty days from Old Navy's receipt of L–
7's October 7th notice of breach, outside counsel for L–
7 sent a letter to Old Navy requesting that Old Navy
remedy the damage to L–7 caused by Old Navy's breach
by (1) compensating L–7 for lost royalties and reputational
damages (estimated at $75 million) and (2) paying Oldham
his expected fees for the second and third years of the
Agreement ($4 million).
VII. Old Navy's December 2008 Response
On December 3, 2008, counsel for Old Navy responded,
denying that Old Navy was obligated to enter into a license
agreement or had failed to negotiate in good faith. Counsel for
Old Navy explained that, in the course of their negotiations,
differences emerged in the parties'
positions, including on such essential
issues as the types of products to be
included in the line, how many stores
would be included in a launch, the
staffing necessary to support such a
line, and, most importantly, the timing
of any such launch.
Ex. 26. According to Old Navy's counsel, “business
circumstances made an extensive launch in the immediate
near term unfeasible.” Id. Thereafter, from December 15,
2008 to February 6, 2009, Old Navy engaged in “sham
negotiations,” falsely representing that it fully intended to
enter into a license agreement. Compl. ¶ 124.
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VIII. The Old Navy January 2009 Proposal
The parties met once in December 2008 and several times
in January 2009 to “work out the details of the license
agreement,” a further draft of which L–7 supplied to Old
Navy on December 15, 2008. Compl. ¶ 60. On January 8,
2009, one hour before a scheduled conference call, Old Navy
proposed a launch at 100 Old Navy stores (“As you know,
our history of presenting third party-branded product in our
stores is relatively short ...”); a one-year *426 commitment
beginning in the spring of 2010; no additional personnel
resources; and a one-year projected royalty of $1.5 million
(“... our previous discussions have never contemplated any
royalty minimum guarantees, and, as a general rule, our
company has not and will not agree to minimum guarantees.
This has been consistent in all of our recent agreements.”) (the
“January Proposal”). Ex. 27.
IX. January 2009 Discussions 6
Oldham responded immediately by email to Old Navy's
January Proposal:
[Your projections] seem
EXTREMELY uncommitted to me.
This feels like an effort to absolve old
navy's contractual responsibilities and
not a commitment to build a new brand
that was made to me when i joined and
what you reiterated to me last month.
100 stores will not work. the 1 million
in launch dollars will not be effective.
the one year commitment is too brief as
there are so many hiccups in launching
a brand.... i hope that we can get this
resolved but we are very far away from
a reasonable plan. the volume of work
necessary to bring a project of this
scale to bloom is at great odds with
your financial projections.
Counterclaims Ex. A. In the discussions that followed, L–7
asked for a minimum guarantee of $37.5 million for a three-
year term and then reduced the request to $20 million for a
two-year term. On January 16, 2009, L–7 inquired of Old
Navy whether it had “made any changes to any of its positions
as stated [in the January Proposal].” Id. Ex. E. Old Navy
responded the next day:
To date, we have not been
presented with any comprehensive
counteroffer and instead there has
been a [sic] insistence on large
guaranteed minimum payments that
we have explained are unacceptable
and inconsistent with our business
plans and practices....
Id. Ex. D. Additional emails were exchanged, and on January
29, 2009, the parties held a conference call, during which
they agreed to talk again after speaking with their respective
“principals.” Ex. 28. The same day, L–7 emailed Old Navy
a “revised proposal” reflecting Oldham's input on the points
discussed during the call. Id.
X. February 2009 Communications
Four days later, on February 2, 2009, Old Navy responded
to L–7's January 29th email, advising L–7 that “despite
our best efforts to negotiate an agreement that would be
reasonable and mutually acceptable, we have not reached and
will not be able to reach common ground on key business
terms,” reiterating that minimum guaranteed payments were
“inconsistent with our business plans and practices.” Id.
Vayness (L–7) responded the same day, explaining his
“surprise” at Old Navy's email given that the January 29,
2009 call was “completely amicable, polite, professional, and
[ ] friendly” and that none of the points discussed during
that call “was left off as a deal breaker.” Id. The email
went on to list items as to which L–7 contended there was
agreement (“number of stores,” “products,” “timeline and
term,” “marketing,” “royalty rate,” and “territory”); items
that it was “now prepared” to accept, including no minimum
guaranteed royalties; two points that needed clarification
(“personnel” and “development budget”); and one issue “to
be agreed to,” namely ownership of “designs.” *427 7 Id.
On February 6, 2009, Old Navy advised L–7 that material
“open issues” remained, and that, in light of the nature of the
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negotiations, Old Navy did not believe that a “collaborative
partnership” could be established. Compl. ¶ 62.
XI. Old Navy's Termination of the Agreement
On February 18, 2009, L–7 commenced this lawsuit against
Old Navy, filing under seal a complaint alleging breach
of contract, breach of the implied duty of good faith and
fair dealing, and fraud. Two days later, on February 20,
2009, counsel for Old Navy sent L–7 a letter terminating the
Agreement (“Termination Letter”) on the grounds that L–7
had
materially breached the [Agreement]
by filing a lawsuit against Old Navy,
by failing to provide meaningful input
on design processes and procedures,
by failing to participate meaningfully
in meetings with the Old Navy creative
team and by otherwise failing to
perform its obligations under the
[Agreement].
Ex. 29. Old Navy did not provide L–7 with an opportunity
to cure its alleged breaches. Prior to the February 20th
Termination Letter, Old Navy had voiced no complaints about
Oldham's performance under the Agreement; instead, he was
continuously praised.
PROCEDURAL HISTORY
L–7 filed its first complaint in the District Court on February
18, 2009, under seal. On April 17, 2009, L–7 filed under seal
the amended Complaint at issue in this appeal, adding claims
for (I) wrongful termination and (II) trade disparagement to
its claims for (III) breach of contract, (IV) breach of the
implied covenant of good faith and fair dealing, and (V) fraud.
Old Navy filed its Answer and Counterclaims on May 1,
2009, and L–7 filed a Reply on May 8, 2009. Old Navy's
motion for judgment on the pleadings was fully submitted on
August 21, 2009. On September 9, 2009, the District Court
stayed depositions and ruled that “a new discovery cut-off
will be set after the pending [Rule 12(c) ] motion is decided.”
Special Appendix to L–7 Appellate Brief (“L–7 App. Brief”)
at 66. In an opinion dated January 19, 2010, it granted Old
Navy's motion, dismissing L–7's Complaint with prejudice. It
issued a slightly amended opinion on January 21, 2010. L–7
moved to amend the judgment and replead two weeks later.
The District Court denied L–7's motion in an opinion dated
February 16, 2010.
I. Motion for Judgment on the Pleadings
A. Count III: Breach of Contract for
Failure to Negotiate in Good Faith
The District Court first dismissed L–7's claim for breach of
contract for Old Navy's failure to enter into the licensing
agreement. 8 It nonetheless concluded that Section 5 of the
SOW “undoubtedly did create [an] obligation on the part of
the parties to negotiate a license agreement in good faith,”
L–7 Designs, Inc. v. Old Navy, LLC, No. 09 Civ. 1432, 2010
WL 157494, at *8 (S.D.N.Y. Jan. 19, 2010). However, it
found that the “record” of the “detailed documentation of
the negotiations between *428 Old Navy and L–7 over the
anticipated license agreement,” combined with the detailed
allegations of the Complaint, “show, unequivocally, that L–
7's claim that Old Navy failed to negotiate in good faith is
not plausible.” Id. First, based on the fact that “the parties
exchanged numerous telephone calls and emails and, as L–
7 acknowledged, progress in the negotiations was made,” it
concluded that Old Navy “negotiated for some ten months.”
Id. Although “the parties seemed to reach an impasse and
negotiations broke down” in the fall of 2008, “the parties
resumed talks and met several times in December 2008
and January 2009” before L–7 rejected Old Navy's January
Proposal. Id.
Second, the District Court concluded that because “L–7 was
making extraordinarily high demands,” it was “not surprising
that Old Navy resisted these demands,” noting that at the
agreed-upon five percent royalty rate “some $200 million in
sales of Todd Oldham branded products would had to have
been generated in one year to generate” even the reduced
royalty request proposed by L–7 ($20 million over two years).
Id.
Third, L–7's only non-conclusory, specific “allegation” was
“its assertion that Old Navy decided to ‘renege’ on its own
January 8, 2009, proposal, and that this decision ‘is itself
damning evidence of [Old Navy's] bad faith.’ ” Id. at *9
(quoting L–7's Memorandum of Law in Opposition to Old
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Navy's Motion for Judgment on the Pleadings (“L–7 12(c)
Opp.”) at 23). But, the District Court concluded, the emails
attached to Old Navy's Counterclaims rendered this assertion
“not plausible” because they showed that “L–7's purported
acceptance of the January 8th proposal on February 2, 2009,
clearly was not [ ] an acceptance of the proposal ‘in its
entirety.’ ” Id. (quoting Compl. ¶ 61).
Fourth, because “insisting on ‘terms to the point of
impasse’ [is] not sufficient to show bad faith,” L–7 could
not argue that “Old Navy's refusal to agree to a minimum
guarantee [was] evidence of bad faith.” Id. (citing Venture
Assocs. Corp. v. Zenith Data Sys. Corp., 96 F.3d 275, 279 (7th
Cir.1996)). 9
B. Count I: Wrongful Termination
The District Court also dismissed Count I—a request for
declaratory judgment (1) that Old Navy failed to provide
(i) written notice of its claims of breach or (ii) 30
days' opportunity to cure any claimed breach; (2) that
the Termination Letter did not effect a termination of the
Agreement; and (3) that Old Navy wrongfully terminated
the Agreement in retaliation for L–7's lawsuit against it. The
District Court offered three reasons why “the claim fails
as a matter of law,” 2010 WL 157494, at *9. First, “Old
Navy did provide written notice of termination.” Id. at *10
(citing the Termination Letter). Second, while acknowledging
Old Navy's admission that it failed to provide a 30–day
cure period, the District Court found that it was relieved
of this obligation because, for two reasons, notice of cure
would have been futile. Initially, the District Court reasoned,
“[i]t is difficult to imagine that Oldham could perform [his]
duties after he sued Old Navy.” Id. (citing Allbrand Discount
Liquors, Inc. v. Times Square Stores Corp., 60 A.D.2d 568,
399 N.Y.S.2d 700, 701 (2d Dep't 1977), for the proposition
that “when one party ‘will not live up to the contract, the
aggrieved party is *429 relieved from the performance of
futile acts' ”). In particular,
Oldham could not very well continue to help Old Navy
creatively, including with respect to public relations
matters, while pursuing a lawsuit against Old Navy.
( [Agreement] § 1). Among other things, Oldham was
supposed to, under the [Agreement], “[m]otivate, inspire,
coach, and share vision, insight and passion with Old
Navy's creative team,” and he was supposed to “[p]rovide
input” to Old Navy's president and leadership team. (Id.).
Id. Notice of breach would also have been futile, the
District Court reasoned, because “[e]ven a withdrawal of the
complaint—and it is highly unlikely that L–7 would have
withdrawn the complaint if Old Navy had sent L–7 a notice to
cure—would not have undone the harm caused by the public
filing of a lawsuit against Old Navy.” Id. Third, Count I failed
because “even assuming the failure to give a cure period was
a breach, in the context here it surely was not a material one.”
Id.
After then dismissing Counts II and V of the Complaint for
trade disparagement and fraud, the District Court granted Old
Navy's motion for judgment on the pleadings and dismissed
L–7's claims with prejudice. Judgment was entered in favor
of Old Navy on January 21, 2010.
II. Motion to Amend and Replead
L–7 filed a motion to amend the judgment and replead
on February 5, 2010 “based on information contained in
documents produced by Old Navy following the close of
briefing” on the Rule 12(c) motion. L–7 Motion to Amend and
Replead at 1. The District Court denied the motion, reasoning
that L–7 had already had “two bites at the apple, as it has
already filed two complaints”; “the request is untimely, as L–
7 has had the documents for months” yet “never indicated a
desire to amend its amended complaint prior to the granting
of the motion for judgment on the pleadings”; and, because
“the additional documents L–7 now seeks to rely on” would
not change the District Court's conclusions, “the proposed
amendment therefore would be futile.” L–7 Designs, Inc. v.
Old Navy, LLC, No. 09 Civ. 1432, 2010 WL 532160, at *2
(S.D.N.Y. Feb. 16, 2010). L–7 filed a timely notice of appeal
on February 17, 2010.
DISCUSSION
I. Motion for Judgment on the Pleadings
A. Standard of Review
[5] [6] We review de novo a district court's decision to
grant a motion for judgment on the pleadings pursuant to
Rule 12(c). See Hayden v. Paterson, 594 F.3d 150, 160 (2d
Cir.2010). In deciding a Rule 12(c) motion, we “employ[ ] the
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same ... standard applicable to dismissals pursuant to [Rule]
12(b)(6). Thus, we will accept all factual allegations in the
[C]omplaint as true and draw all reasonable inferences in
[Plaintiff's] favor.” Johnson v. Rowley, 569 F.3d 40, 43 (2d
Cir.2009) (quotation marks and citation omitted). 10
*430 In Ashcroft v. Iqbal, the Supreme Court set forth
a “two-pronged approach” to evaluate the sufficiency of a
complaint. 129 S.Ct. at 1949–50. “First, although a court
must accept as true all of the allegations contained in a
complaint, that tenet is inapplicable to legal conclusions,
and threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (quotation
marks and alterations omitted). “Second, only a complaint
that states a plausible claim for relief survives a motion
to dismiss, and determining whether a complaint states a
plausible claim for relief will ... be a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.” Id. (quotation marks and alteration
omitted). “The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949
(quotation marks omitted). Plausibility thus depends on a host
of considerations: the full factual picture presented by the
complaint, the particular cause of action and its elements, and
the existence of alternative explanations so obvious that they
render plaintiff's inferences unreasonable. See id. at 1947–52.
B. Counts II, IV, and V
We affirm the District Court's dismissal of the trade
disparagement and common law fraud claims substantially
for the reasons articulated by the District Court. We also
affirm dismissal of the claim for breach of the implied duty
of good faith and fair dealing, but for a different reason. See
infra note 18.
C. Count III: Breach of Contract for
Failure to Negotiate in Good Faith
1. Applicable Law
[7] [8] Under New York law parties who enter into binding
preliminary agreements, such as Section 5 of the SOW,
“accept a mutual commitment to negotiate together in good
faith in an effort to reach final agreement....” Teachers Ins.
& Annuity Ass'n of Am. v. Tribune Co., 670 F.Supp. 491, 498
(S.D.N.Y.1987). These agreements do not commit the parties
to reach their ultimate contractual objective; instead, such
agreements create an “obligation to negotiate the open issues
in good faith in an attempt to reach the ... objective within
the agreed framework.” Adjustrite Sys., Inc. v. GAB Bus.
Servs., Inc., 145 F.3d 543, 548 (2d Cir.1998) (quotation marks
omitted). This obligation bars a party from “renouncing the
deal, abandoning the negotiations, or insisting on conditions
that do not conform to the preliminary agreement.” Tribune,
670 F.Supp. at 498.
[9] “In effect, an agreement to agree buys a party an
assurance that the transaction will falter only over a genuine
disagreement, thus allowing a party strapped for time or
money to go ahead with arrangements with a sufficient
degree of confidence in the outcome.” P.A. Bergner & Co.
v. Martinez, 823 F.Supp. 151, 156 (S.D.N.Y.1993); see also
Penguin Grp. (USA) Inc. v. Steinbeck, No. 06 CV 2438, 2009
WL 857466, at *2 (S.D.N.Y. Mar. 31, 2009) (“The linchpin
of negotiation is not that one side capitulates to the other,
but that there is a good faith, honest, articulation of interests,
positions, or understandings.”); *431 Venture Assocs. Corp.,
96 F.3d at 278 (“The parties may want assurance that their
investments in time and money and effort will not be wiped
out by the other party's foot-dragging or change of heart
or taking advantage of a vulnerable position created in the
negotiation.”). “[T]he parties may abandon the transaction as
long as they have made a good faith effort to close the deal
and have not insisted on conditions that do not conform to the
preliminary writing.” Adjustrite, 145 F.3d at 548.
[10] To state a claim for breach of contract for failure to
negotiate in good faith, a plaintiff must “allege the specific
instances or acts that amounted to the breach”; “generalized
allegations and grievances” will not suffice to survive a
motion for judgment on the pleadings. U.S. ex rel. Smith v.
New York Presbyterian Hosp., No. 06 Civ. 4056, 2007 WL
2142312, at *16 (S.D.N.Y. July 18, 2007); accord Prospect St.
Ventures I, LLC v. Eclipsys Solutions Corp., 23 A.D.3d 213,
804 N.Y.S.2d 301, 302 (1st Dep't 2005).
[11] Although lost profits are not available where no
agreement is reached, see Goodstein Constr. Corp. v. City of
New York, 80 N.Y.2d 366, 374, 590 N.Y.S.2d 425, 604 N.E.2d
1356 (1992), out-of-pocket costs incurred in the course of
good faith partial performance are appropriate, see Arcadian
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Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 74 n. 2 (2d
Cir.1989).
2. Application
[12] L–7 stated a plausible claim that Old Navy breached
its obligation to negotiate the license agreement in good
faith. The three bases alleged for this claim were that Old
Navy (1) “failed to participate in negotiations from April
2008 to December 15, 2008 and never provided a single
substantive comment with respect to the draft license at any
time in 2008,” L–7 12(c) Opp. at 5; 11 (2) made “repeated
material representations that it would negotiate the terms of
the license agreement in good faith,” which L–7 subsequently
learned were “false,” Compl. ¶ 47; and (3) “proposed terms
it knew to be in bad faith and economically unfair to [L–
7], believing they would be rejected, and then reneged when
[L–7] did accept,” L–7 12(c) Opp. at 23. These are legally
cognizable theories for breach of the duty to negotiate in
good faith. Moreover, drawing all reasonable inferences in L–
7's favor, the non-conclusory allegations in L–7's Complaint,
combined with the exhibits attached thereto, render each one
plausible. 12
First, L–7 plausibly alleged that Old Navy—who in June
of 2008 proposed postponing negotiations—was engaged
in dilatory tactics from April 2008 until December 15,
2008, during which time it failed to provide any substantive
comments on L–7's draft license agreement. The emails
exchanged between Vayness (L–7) and Fahlbusch (Old Navy)
from April 2008 until September 10, 2008—when Fahlbusch
finally “recommend[ed]” that Vayness and Oldham work
“directly with [Howe] in terms of the branded line,” Ex.
21—support *432 the plausible inference that Fahlbusch
was repeatedly putting L–7 off for undisclosed or pretextual
reasons (discussed further below). The mere exchange of
telephone calls and emails—most of which were initiated by
L–7 (according to L–7's exhibits) and some of which Old
Navy did not respond to (according to L–7's uncontradicted
allegations)—does not make the inference that “Old Navy
negotiated for some ten months,” 2010 WL 157494, at *8,
so obvious that L–7's opposing inference of dilatory tactics is
rendered implausible. 13
Similarly, whether or not L–7 agreed to Old Navy's alleged
request to postpone discussions in June of 2008—a question
of fact left open by the pleadings 14 —that would not defeat
L–7's allegations that Old Navy was engaged in dilatory
tactics. “[A]ssuming the pleaded facts to be true and read[ing
those facts] in [L–7's] favor,” Sepúlveda–Villarini v. Dep't
of Educ. of Puerto Rico, 628 F.3d 25, 30 (1st Cir.2010)
(Souter, J.), it suggests the converse—that L–7, eager to
execute the licensing agreement on terms as favorable to it as
possible, and trusting that its negotiating partner in good faith
believed a postponement of discussions would be mutually
advantageous, was negotiating in good faith. It is reasonable
to infer that, once L–7 became suspicious of what it believed
to be dilatory tactics on Old Navy's part, it took a firmer
stance, clarifying that while Old Navy may have “thought that
[Oldham] agreed to postpone the finalizing of an agreement,”
the “idea of postponing immediate discussions” was merely
“discussed,” and that the parties should work to ensure that
the Agreement did not “become breached,” Ex. 22.
[13] Second, L–7 plausibly alleged that, commencing in
May 2008, Old Navy made repeated material representations
that L–7 subsequently learned were false, such as Fahlbusch's
(Old Navy's) assurances to Oldham that she was already
working with Old Navy's legal team on the licensing
agreement template, or her multiple promises to get back
to L–7, which either never happened or only occurred after
substantial delay. 15 L–7's Complaint also suggests that,
instead of revealing “its true purpose, which was to avoid
entering *433 into the license agreement as required under
the [Agreement],” Compl. ¶ 121 (emphasis added), Old
Navy advanced pretextual reasons for its decision to delay
negotiations (economic conditions) and, ultimately, to cut
off negotiations (L–7's insistence on minimum guaranteed
royalties). See Teachers Ins. & Annuity Assoc. of Am. v. Butler,
626 F.Supp. 1229, 1233–34 (S.D.N.Y.1986) (upholding a
finding of bad faith, after a six-day non-jury trial, where
evidence suggested that defendant “deliberately intended” not
to close on an agreement that was no longer “economically
favorable” to it due to a decline in interest rates, “seiz[ing]
on” other terms of the agreement “as a pretext for not going
forward with” it at the eleventh hour). That Old Navy's “true
purpose” was to avoid negotiating at all can be inferred
from the fact that Old Navy informed L–7 (1) that it wished
to postpone the signing of a license indefinitely, (2) that
it could not make a commitment to any discussions, and,
ultimately, (3) that it “could not follow through with the
promised license,” Compl. ¶ 55.
Moreover, L–7's Complaint and the exhibits attached thereto
support the inference that Old Navy's purported reasons
for withdrawing from negotiations—i.e., that minimum
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guaranteed royalties were “inconsistent with [Old Navy's]
business plans and practices,” Ex. 28—were pretextual. As
of December 3, 2008, minimum guaranteed royalties were
not one of the four “essential issues” on which “differences
[had] emerged in the parties' positions” according to Old
Navy, Ex. 26 (describing “the timing of [the] launch” as the
“most important [ ]” issue); and assuming the truth of L–7's
uncontradicted documentary evidence, none of the points that
had “yet to be resolved” after the January 29th conference call
—including minimum guaranteed royalties—“was left off as
a deal breaker” to L–7, Ex. 28.
[14] Third, L–7 plausibly alleged that Old Navy's January
Proposal was designed to be “economically unfair” to L–7 so
that L–7 would reject it, pointing to Old Navy's “reneging”
on its offer when L–7 ultimately signaled—after several
counteroffers—that it would accept the bulk of the January
Proposal. See L–7 12(c) Opp. at 23. While the District Court
concluded as a matter of law that L–7 did not “accept”
Old Navy's January Proposal, we are inclined to see a fact
question as to whether L–7 plausibly alleged that Old Navy's
January Proposal was designed to elicit L–7's rejection. See
Venture Assocs., 96 F.3d at 280 (business owner would be
acting in bad faith if its purpose in demanding more than
prospective buyer would pay “was to induce [prospective
buyer] to back out of the deal”). Whether or not L–7 “rejected
key terms of Old Navy's” January Proposal or “made a
series of counter-demands” before attempting to resurrect it,
2010 WL 157494, at * 9, 16 the well-pled fact remains that,
when L–7 finally acquiesced to Old Navy's insistence on no
minimum guaranteed royalties and appeared willing to accept
an offer substantially on Old Navy's terms, Old Navy balked.
In light of the (1) documentary evidence that Old Navy's first
proposal for the Branded Line did not come until January of
2009, after the intervention of outside counsel; (2) allegations
that Old Navy's sluggish negotiations from December 15,
2008 to February 6, 2009 were a “sham,” Compl. ¶ 124; (3)
documentary evidence that L–7 was slowly retreating *434
from and ultimately abandoned its insistence on minimum
guaranteed royalties, a supposed sticking point for Old Navy;
and (4) allegations that, under new management and in a
deteriorating retail environment, Old Navy had decided it did
not want to close any deal with Oldham, the Complaint raised
the plausible inference that Old Navy's January Proposal was
designed to elicit L–7's rejection. For all of these reasons, L–
7 stated a claim for breach of contract for failure to negotiate
in good faith. 17
D. Count I: Wrongful Termination
[15] L–7 stated a claim for declaratory judgment for all three
prongs of Count I. First, L–7 stated a claim for declaratory
judgment that Old Navy failed to comply with the notice and
cure provisions of the Agreement. Before either party could
terminate the Agreement, section 5 required (1) notice of a
material breach, (2) 30 days' opportunity to cure, (3) failure
to cure the material breach, and (4) notice of termination. See
Agreement § 5. But Old Navy's Termination Letter provided
only notice of termination—effective immediately—without
providing L–7 with notice of its alleged breaches and 30 days'
opportunity to cure. Old Navy conceded as much in its motion
for judgment on the pleadings. See Old Navy's Memorandum
of Law in Support of Motion for Judgment on the Pleadings
at 23. Therefore, this claim should have survived.
Second, for the same reasons, L–7's claim for declaratory
judgment that the Termination letter did not effect a
termination of the Agreement should have survived.
Third, L–7 stated a claim for declaratory judgment that
Old Navy wrongfully terminated the Agreement. Old Navy
notified L–7 that it had “materially breached the [Agreement]
by [ (1) ] filing a lawsuit against Old Navy” and (2) by
failing to satisfy certain unspecified performance obligations.
Ex. 29. “[B]ringing suit to determine the meaning of an
agreement is not a breach of that agreement absent some
explicit contractual provision that the party will not bring
suit.” Prudential Equity Grp., LLC v. Ajamie, 538 F.Supp.2d
605, 611–12 (S.D.N.Y.2008). Moreover, as L–7 explained
to the District Court, “none of the vague, unspecified issues
mentioned in the Termination Letter had been previously
raised with L–7.... To the contrary, Mr. Oldham had been
repeatedly and widely praised by Gap and Old Navy
executives and staff throughout his Old Navy tenure.” L–
7 App. Brief at 50 (citing multiple allegations in, and
documentary evidence supporting, the Complaint). Old Navy
made no argument, and pointed to no evidence, contradicting
these well-pled facts. Therefore, accepting L–7's allegations
as true and drawing every inference in its favor, L–7 plausibly
alleged that it was in compliance with the Agreement, which
was therefore wrongfully terminated.
The District Court dismissed Count I upon its determination
that Old Navy had no duty to provide L–7 with an opportunity
to cure because such cure would have been futile. (Of
course, if the alleged grounds for L–7's termination did not
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constitute breach or material breach, then it is irrelevant
whether L–7 could have *435 “cured.”) Thus, the District
Court concluded that Oldham was unlikely to have been able
to “perform [his] duties after he sued Old Navy” and unlikely
to have withdrawn his complaint if Old Navy had sent a notice
of breach. But this appears to be speculative. That conclusion,
and the conclusion that withdrawal of the complaint could not
have “undone the harm caused by the public filing of a lawsuit
against Old Navy,” 2010 WL 157494, at *10 (emphasis
added), rests on the public nature of the litigation. However,
it is undisputed that both of L–7's complaints were filed under
seal. For all of these reasons, Count I survives Old Navy's
12(c) motion as a matter of law.
II. Motion to Amend the Judgment and Replead
[16] [17] We generally review motions for reconsideration
under an “abuse of discretion” standard. See Devlin v. Transp.
Commc'n Int'l Union, 175 F.3d 121, 131–32 (2d Cir.1999).
However, a denial of leave to amend that is based on a
legal interpretation, such as for futility, is reviewed de novo.
See Gorman v. Consol. Edison Corp., 488 F.3d 586, 592
(2d Cir.2007); Littlejohn v. Artuz, 271 F.3d 360, 362 (2d
Cir.2001).
The District Court erred in denying L–7's motion for leave
to replead its bad faith negotiation claim based on futility. 18
However, in light of our finding that Count III stated a claim
for relief, this error was harmless because that Count of L–7's
April 17, 2009 Complaint is reinstated.
CONCLUSION
For the foregoing reasons, we affirm in part and vacate in
part the District Court's judgment, and we remand for further
proceedings; in so doing we reverse in part the order of
the District Court that dismissed the Complaint and reinstate
Count I and Count III (on the three bases discussed in this
Opinion).
All Citations
647 F.3d 419
Footnotes
* The Honorable Shira A. Scheindlin, of the United States District Court for the Southern District of New York,
sitting by designation.
1 We set forth the pleadings in great detail to demonstrate the unusual amount of material the District Court
had before it on this 12(c) motion.
2 All exhibits cited herein are exhibits to the Complaint unless otherwise noted.
3 For example, Oldham entered into a licensing agreement with Mattel, Inc. for a special collector's edition of
a Barbie doll.
4 By its terms, the Agreement is governed by New York law.
5 The Complaint alleges that Howe, Old Navy's then-executive vice president, expressed this to L–7. See
Compl. ¶ 52. An October 7, 2008 email from Vayness (L–7) to Wyatt, however, indicates that Wyatt made
the statement. See Ex. 23.
6 L–7's Complaint and exhibits attached thereto largely omit reference to the parties' January 2009 discussions.
The “facts” set forth below are primarily drawn from the five email exhibits to Old Navy's Counterclaims.
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7 Citing this email, L–7 alleges in the Complaint that “[o]n February 2, 2009, L–7 ... accepted Old Navy's
January 8, 2009 proposal in its entirety.” Compl. ¶ 61. As the text of the email makes clear, however, this
was not quite so.
8 We affirm this portion of the District Court's dismissal of Count III.
9 The District Court then concluded that, because Count IV (breach of the implied duty of good faith and fair
dealing) was “essentially identical” to Count III “as both are based on the allegation that Old Navy failed to
negotiate a license agreement in good faith,” Count IV failed to state a claim “[f] or the [same] reasons.” 2010
WL 157494, at *9.
10 We note that, as plaintiffs carefully heed the admonition to support “legal conclusions” with factual allegations
—lest they be deemed “conclusory” and therefore denied a presumption of truthfulness, Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009)—trial judges, and appellate judges who review
their determinations, are constantly faced with the task of evaluating competing inferences to be drawn from
those facts. In this sense, Iqbal and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 586, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007), have rendered even more important (and more difficult) both trial judges' adherence to
the most fundamental pleading principles—namely, accepting as true all factual allegations and drawing all
reasonable inferences from those facts in plaintiffs' favor—and appellate judges' subsequent de novo review
of the decisions of the district courts.
11 See also L–7 12(c) Opp. at 23 (Old Navy “fail[ed] to engage [L–7] in negotiations on the license with [L–7]
for more than one year.”).
12 Citing Adjustrite, 145 F.3d at 548, Defendant argues that the District Court could find, as a matter of law
based on Old Navy's proposal of terms “consistent with” Section 5 of the SOW, that it negotiated in good
faith. However, the only term specified in the September 2007 agreement with which Old Navy's proposal
could have “conform [ed]” was the five percent royalty fee. That the January Proposal included this royalty
provision does not establish as a legal matter that it acted in good faith, especially in light of L–7's well-pled
allegations that the January negotiations were designed to induce L–7's rejection.
13 Nor is the inference that “progress in the negotiations was made,” 2010 WL 157494, at *8, so obvious from
L–7's June 12th email that “things are proceeding in the right direction with the branded line” that L–7's
reasonable, opposing inference must be discredited. Drawing all reasonable inferences in L–7's favor, and
taking into account its allegations that Old Navy was stalling, the June 12th email suggests that L–7, frustrated
with Old Navy's non-responsiveness, was politely encouraging Old Navy to entertain L–7's proposals, while
communicating its view that the parties still had a long way to go.
14 In the “Facts” section of its opinion, the District Court stated that “Old Navy wanted to postpone the launch
[of the Branded Line] and L–7 was prepared to do so, from October 1, 2008, to February 1, 2009.” 2010 WL
157494, at *2. However, in making this factual determination, it cited a draft email from Vayness (L–7) to
Howe (Old Navy) on Oldham's behalf. See Ex. 22 (entitled “2nd draft email to [Howe]”). The email Vayness
(L–7) actually sent states only his “underst[anding]” that Howe “thought that [Oldham] had agreed to postpone
the finalizing of an agreement.” Id. (emphasis added). The draft email written by Oldham's representative
about a June meeting for which he (the representative) was not present and where “the idea of postponing
the discussion ... was discussed” does not establish, at the motion for judgment on the pleadings stage, that
“L–7 was prepared” to postpone the launch of the Branded Line by four months, 2010 WL 157494, at *2.
15 A reasonable inference to draw from Old Navy's lack of communication and failure to supply counter-
proposals or comments—on a draft license agreement that Old Navy's legal team was supposedly “already
working” on as early as May 2008—is that Fahlbusch's (Old Navy's) representation was false.
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16 The District Court concluded that L–7's requests for minimum guaranteed royalties constituted “extraordinarily
high demands” to which Old Navy's resistance was “not surprising,” 2010 WL 157494, at *8. But L–7 argues,
and we are inclined to agree, that this factual determination was made without the benefit of discovery or
expert testimony.
17 Because L–7's claim for breach of the implied covenant of good faith and fair dealing (Count IV) is based on
the same facts as its claim for breach of contract, it should have been dismissed as redundant. See Harris
v. Provident Life & Accident Ins. Co., 310 F.3d 73, 81 (2d Cir.2002); Fasolino Foods Co. v. Banca Nazionale
del Lavoro, 961 F.2d 1052, 1056 (2d Cir.1992) (“[B]reach of [the duty of good faith and fair dealing] is merely
a breach of the underlying contract.”).
18 We affirm the District Court's denial of L–7's motion for leave to replead trade disparagement and fraud.
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Torrez v. Department of Correction, Not Reported in Fed. Supp. (2017)
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2017 WL 3841681
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United States District Court, D. Connecticut.
Jose Anthony TORREZ, Plaintiff,
v.
DEPARTMENT OF CORRECTION, et al., Defendants.
No. 3:17-cv-01223 (SRU)
|
Signed 09/01/2017
Attorneys and Law Firms
Jose Anthony Torrez, Somers, CT, pro se.
INITIAL REVIEW ORDER
Stefan R. Underhill, United States District Judge
*1 Jose Anthony Torrez, currently confined at Northern
Correctional Institution in Somers, Connecticut, filed a
complaint pro se under 42 U.S.C. § 1983 challenging
his conditions of confinement as a pretrial detainee. The
defendants are the Department of Correction, Scott Semple,
Monica Rinaldi, William Mulligan, Carol Chapdelaine,
Giuliana Mudano, Craig Burns, Colleen Gallagher, Brian
Libel, Mark A. Frayne, Dr. Yesu, Gerald G. Gagne, Jr., and
Gregorio Robles. Torrez's complaint was received on July
21, 2017, and his motion to proceed in forma pauperis was
granted on July 25, 2017.
Under section 1915A of Title 28 of the United States Code, I
must review prisoner civil complaints and dismiss any portion
of the complaint that is frivolous or malicious, that fails to
state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915A. Although detailed allegations are
not required, the complaint must include sufficient facts to
afford the defendants fair notice of the claims and the grounds
upon which they are based and to demonstrate a plausible
right to relief. Bell Atlantic v. Twombly, 550 U.S. 544, 555–
56 (2007). Conclusory allegations are not sufficient. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead
“enough facts to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570. Nevertheless, it is well-
established that “[p]ro se complaints ‘must be construed
liberally and interpreted to raise the strongest arguments that
they suggest.’ ” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d
Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater,
623 F.3d 90, 101–02 (2d Cir. 2010) (discussing special rules
of solicitude for pro se litigants).
I. Allegations
Defendants Semple and Rinaldi, respectively, are the
Commissioner and Acting Deputy Commissioner of the
Department of Correction. Defendant Mulligan was the
Warden at Northern Correctional Institution (“Northern”).
Defendants Chapdelaine and Mudano, respectively, were
the Warden and Acting Deputy Warden at MacDougall-
Walker Correctional Institution (“MacDougall”). Dr. Burns
is the Director of Clinical Services with regard to psychiatry
for the Department of Correction. Defendant Gallagher
is the Director of the Americans with Disabilities Act
for the Department of Correction. Defendant Libel is
a Health Services Administrator. Drs. Frayne and Yesu
are psychiatrists employed at Northern and MacDougall,
respectively. Dr. Gagne is a medical doctor employed at
Northern. Captain Robles is a custodial officer at Northern.
Torrez is classified as seriously mentally ill. He suffers from
bipolar disorder, depression, post-traumatic stress disorder,
attention deficit disorder, attention deficit hyperactivity
disorder, and conduct disorder. He has taken mental health
medication and undergone therapy to address these conditions
since childhood. Torrez also has engaged in acts of mania and
has attempted suicide.
*2 In February 2016, while he was a pretrial detainee,
Torres was transferred to Northern. He was then transferred
to Cheshire Correctional Institution in September 2016, and
then to MacDougall in January 2017, when Phases 2 and 3
of the Administrative Segregation Program were transferred
to MacDougall. Northern is a maximum security, level 5,
facility. Although MacDougall is a level 4 facility, the B-1
housing unit is used as a maximum security unit. There are no
mental health units at either facility.
Torrez has been confined in Administrative Segregation at
both Northern and MacDougall. Administrative Segregation
can involve extended periods of solitary confinement that
entail social isolation and reduced environmental stimulation.
In Phase 1 of Administrative Segregation, inmates are
confined in a small sensory deprivation cell for 23 hours per
day. They eat all meals in the cell. Inmates are removed from
the cell for one hour of recreation per day and showers three
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times per week. Inmates are placed in full restraints any time
they leave their cells. They are denied contact visits and are
limited to one 15-minute telephone call per week. Inmates are
denied work assignments and cannot participate in congregate
programs. They are permitted only limited property and have
restricted use of sinks and toilets.
Torrez has been confined in Administrative Segregation for
over a year. He was in phase 1 for most of the time he was
at Northern. Torrez alleges that defendant Gagne sexually
harassed him by forcing him to exit his cell and speak with
Dr. Gagne one-on-one at Northern.
Torrez has received disciplinary sanctions as a result of
behavior that is caused by his mental illness. Those sanctions
include placement in punitive segregation, denial of visitation
and telephone privileges, placement on in-cell restraint status,
placement on behavioral observation status, and exposure to
excessive amounts of chemical agent during cell extractions.
In many instances, the defendants did not attempt mental
health interventions before using discipline or punishment.
Dr. Frayne has watched Torrez attempt to commit suicide
without calling a code and instead placed Torrez on behavior
observation status with no one watching him or providing
mental health treatment.
Torrez has not been provided adequate mental health care
at Northern or MacDougall. The defendants failed to ensure
these facilities are adequately staffed with mental health
providers so the inmates can receive proper mental health
treatment. They also have not trained custodial staff to
properly deal with mentally ill inmates.
Defendants Libel, Burns, Yesu, Frayne and Gagne have
failed to develop an adequate mental health plan for Torrez.
They have not provided him with psychotherapy. Despite
documentation from the community, defendants Frayne and
Gagne claim that the plaintiff is manipulating his illness.
Torrez alleges that he should have been confined at Garner
Correctional Institution (“Garner”).
The conditions of confinement have exacerbated Torrez'
mental illness and caused him to suffer physical injury. He
experiences racing thoughts, fear for his safety, loss of sleep,
and extreme anxiety attacks. Torrez has engaged in self-harm
in the form of beatings by custodial staff, and has attempted
suicide. All defendants had access to Torrez' mental health
records and, thus, were aware of his mental health needs. In
addition, Torrez repeatedly informed the defendants about his
conditions.
II. Analysis
Torrez includes three counts in his complaint. In the first
count, he alleges that all defendants have been deliberately
indifferent to his serious mental health needs in violation of
the Eighth and Fourteenth Amendments. In the second count,
Torrez contends that all defendants created or continued a
policy or custom under which he was deprived of adequate
mental health care and subordinate staff was not adequately
supervised and trained. Finally, in the third count, Torrez
alleges that he had a protected liberty interest in avoiding
transfer to Northern or MacDougall, and that defendants
Semple, Rinaldi and Burns violated his due process right
when they failed to transfer him to Garner. He also alleges
that all defendants violated his right to due process by failing
to comply with the Americans with Disabilities Act.
A. Fourteenth Amendment Claims
*3 Torrez alleges that he was a pretrial detainee
during some of the time he was confined at Northern.
Claims of pretrial detainees are considered under the
Fourteenth Amendment while claims of sentenced inmates
are considered under the Eighth Amendment. See Darnell
v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). Department
of Correction records show that Torrez was sentenced
on May 27, 2016. See www.ctinmateinfo.state.ct.us/
detailsupv.asp?id_inmt_num=403197 (last visited July 26,
2017). After sentencing, Torrez's rights arose under the Eighth
Amendment, rather than the Fourteenth.
I note that Torrez recently filed a complaint that included a
challenge to the conditions of confinement in Administrative
Segregation at Northern during the time that he was a pretrial
detainee, as well as a claim for deliberate indifference to his
mental health needs during that time. See Torrez v. Semple,
No. 3:17-cv-1211 (SRU). Hence, in both cases, Torrez has
attempted to raise claims concerning the time Torrez was a
pretrial detainee.
Under the prior pending action doctrine, generally, where
two lawsuits include the same claims, “the first suit [filed]
should have priority.” Adam v. Jacobs, 950 F.2d 89, 92 (2d
Cir. 1991). “Where two pending actions address the same
legal claims and conduct, the court may dismiss the second
action as long as the controlling issues in the dismissed action
will be determined in the other lawsuit.” Edwards v. North
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American Power and Gas, LLC, 2016 WL 3093356, at *3
(D. Conn. June 1, 2016) (internal quotation marks omitted).
Both the Second Circuit and this court have applied the prior
pending action doctrine to specific claims within one lawsuit
that also are included in a prior pending lawsuit. See, e.g.,
Ziemba v. Clark, 167 Fed.Appx. 831, 832 (2d Cir. 2006)
(“[O]n the basis of the ‘prior pending action doctrine,’ ... [t]he
district court acted within its discretion in dismissing claims
that are the subject of other, earlier lawsuits.”); Harnage v.
Caldonero, 2017 WL 2190057, at *5 (D. Conn. May 18,
2017) (dismissing two claims under prior pending action
doctrine).
Because Torrez includes the claims relating to the time he
was a pretrial detainee in his prior case, those claims are
dismissed. If any defendants in this case who were involved
in those claims have not been named as defendants in the
prior case, then Torrez may move to amend his complaint in
the prior case to include them. Should he choose to do so,
his amended complaint shall explain how the new defendants
were involved in the claims relating to the time Torrez was a
pretrial detainee.
B. Eighth Amendment Claim
Torrez' contends that his confinement in Administrative
Segregation while a sentenced inmate constitutes deliberate
indifference to his serious mental health needs.
To state a claim for deliberate indifference to a serious mental
health need, Torrez must show both that his mental health
need was “serious” and that the defendants acted with a
“sufficiently culpable state of mind.” See Smith v. Carpenter,
316 F.3d 178, 184 (2d Cir. 2003) (citing Estelle v. Gamble,
492 U.S. 97, 104 (1976)). The deliberate indifference
standard has “both [ ] objective and subjective” components.
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
Objectively, the alleged deprivation must be “sufficiently
serious.” Wilson v. Seiter, 501 U.S. 294, 298 (1991)—that is,
the condition must “produce death, degeneration, or extreme
pain.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
Torrez's mental disorders, as alleged, satisfy the objective
component.
*4 The subjective component requires that defendants be
“subjectively aware” that their actions create “a substantial
risk [of] serious inmate harm.” Salahuddin v. Goord, 467 F.3d
263, 280 (2d Cir. 2006). Torrez alleges that the defendants
were aware of the lack of mental health treatment available,
and that the conditions at the prisons would exacerbate
his mental illnesses. Those allegations are sufficient, at the
present stage of the litigation, to state a plausible claim for
deliberate indifference to mental health needs.
C. Supervisory Liability
Torrez also includes a claim for supervisory liability against
all defendants for creating or continuing the policy under
which mentally ill inmate are confined under restrictive
conditions without adequate mental health treatment in
Administrative Segregation, and for failing to train and
supervise subordinates to prevent further mental health harm.
To state a claim for supervisory liability, Torrez must
demonstrate that the defendants (1) actually and directly
participated in the alleged constitutional violation; (2) failed
to remedy a wrong after being informed of it though a report
or appeal; (3) created or approved a policy or custom that
sanctioned objectionable conduct that rose to the level of a
constitutional violation, or permitted such a policy or custom
to continue; (4) were grossly negligent in their supervision
of the officers who committed the constitutional violation;
or (5) were deliberately indifferent to the plaintiff's rights by
failing to act in response to information that unconstitutional
acts were occurring. See Hernandez v. Keane, 341 F.3d 137,
144 (2d Cir. 2003). In addition, Torrez must demonstrate
an “affirmative causal link” between the actions of the
supervisory official and his injuries. See Poe v. Leonard, 282
F.3d 123, 140 (2d Cir. 2002).
Torrez alleges that the defendants were responsible for
creating or continuing the Administrative Segregation
program for mentally ill inmates and assigning the program to
correctional facilities without proper mental health treatment
programs. He also alleges that they failed to train subordinates
to not punish mentally ill inmates for conduct attributable
to the illnesses. Those allegations are sufficient, at the
present stage of the litigation, to state a plausible claim for
supervisory liability.
D. Due Process
Torrez also asserts a due process claim. He contends that
defendants Semple, Rinaldi, and Burns violated his right to
due process in two ways: first, by transferring him to Northern
and MacDougall and then refusing to transfer him to Garner;
and second, by failing to comply with the Americans with
Disabilities Act.
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a. Location of Confinement
The Due Process Clause of the Fourteenth Amendment
provides that no State “shall any state deprive any person
of life, liberty, or property, without due process of law.”
U.S. Const. amend. XIV, § 1. The Due Process Clause “does
not protect against all deprivations of liberty. It protects
only against deprivations of liberty accomplished without
due process of law.” Baker v. McCollan, 443 U.S. 137,
145 (1979) (internal quotation marks and citation omitted).
Here, Torrez challenges the fact of his confinement in
Administrative Segregation, not the procedures that resulted
in his classification. Therefore, he fails to state a due process
claim.
Furthermore, although Torrez has a constitutional right to
adequate mental health treatment, he has no constitutional
right to be housed in any particular correctional facility. See
Olim v. Wakinekona, 461 U.S. 238, 248 (1983) (holding that
“an interstate prison transfer ... does not deprive an inmate
of any liberty interest protected by the Due Process Clause”);
Meachum v. Fano, 427 U.S. 215, 225 (1976) (due process
does not protect a “duly convicted prisoner against transfer
from one institution to another within the state prison system,”
even where conditions in one prison are “more disagreeable”
or the prison has “more severe rules”).
b. Americans with Disabilities Act
*5 Torrez also alleges that all defendants violated his right
to due process by failing to comply with the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. The
purpose of the ADA is “to provide a clear and comprehensive
national mandate for the elimination of discrimination against
individuals with disabilities.” Id. at § 12101(b)(1). The statute
provides that “no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in
or be denied the benefits of services, programs, or activities
of a public entity, or be subjected to discrimination by such
entity.” Id. at § 12132. The statute is intended “to ensure
evenhanded treatment between the disabled and the able-
bodied.” Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998).
The ADA defines “disability” as “a physical or mental
impairment that substantially limits one or more major
life activities.” 42 U.S.C. § 12102(2)(A). “[I]n assessing
whether a plaintiff has a disability, courts have been careful
to distinguish impairments which merely affect major life
activities from those that substantially limit those activities.”
Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 870 (2d Cir.
1998). For purposes of this Ruling, I assume that Torrez's
mental disorders constitute a disability under the ADA.
To state a claim under the ADA, Torrez must also allege
facts showing that he was denied or excluded from a service,
program or activity because of his disability. Torrez alleges
that he was treated the same as any other inmate accused
of assaulting staff. His claim is that he should have been
treated differently because of his disability. Thus, Torrez fails
to allege facts satisfying the second requirement to state an
ADA claim. Absent an underlying ADA claim, there is no
factual basis for the claim for denial of due process.
III. Conclusion
All Fourteenth Amendment and due process claims are
DISMISSED without prejudice pursuant to 28 U.S.C.
§ 1915A(b)(1). The case will proceed on the Eighth
Amendment claims for deliberate indifference to serious
mental health needs and the supervisory liability claim.
In accordance with the foregoing analysis, I enter the
following orders:
(1) The Clerk shall verify the current work address for
each individual defendant with the Department of Correction
Office of Legal Affairs, mail a waiver of service of process
request packets containing the Complaint to the defendants
within twenty-one (21) days of this Order, and report to the
court on the status of the waiver request on the thirty-fifth
(35) day after mailing. If any defendant fails to return the
waiver request, the Clerk shall make arrangements for in-
person service by the U.S. Marshal Service on him in his
individual capacity and the defendant shall be required to pay
the costs of such service in accordance with Federal Rule of
Civil Procedure 4(d).
(2) The Clerk shall prepare a summons form and send an
official capacity service packet to the U.S. Marshal Service.
The U.S. Marshal is directed to effect service of the complaint
on the defendants in their official capacities at the Office of
the Attorney General, 55 Elm Street, Hartford, CT 06141,
within twenty-one (21) days from the date of this order and
to file a return of service within thirty (30) days from the date
of this order.
(3) The Clerk shall send Torrez a copy of this Order.
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(4) The Clerk shall send a courtesy copy of the Complaint
and this Order to the Connecticut Attorney General and the
Department of Correction Office of Legal Affairs.
(5) The defendants shall file their response to the complaint,
either an answer or motion to dismiss, within sixty (60) days
from the date the waiver forms are sent. If they choose to
file an answer, then they shall admit or deny the allegations
and respond to the cognizable claim recited above. They also
may include any and all additional defenses permitted by the
Federal Rules.
*6 (6) Discovery, pursuant to Federal Rules of Civil
Procedure 26 through 37, shall be completed within seven
months (210 days) from the date of this order. Discovery
requests need not be filed with the court.
(7) All motions for summary judgment shall be filed within
eight months (240 days) from the date of this order.
(8) Pursuant to Local Civil Rule 7(a), a nonmoving party must
respond to a dispositive motion within twenty-one (21) days
of the date the motion was filed. If no response is filed, or the
response is not timely, the dispositive motion can be granted
absent objection.
(9) Should Torrez change his address at any time during the
litigation of this case, Local Court Rule 83.1(c)2 provides
that plaintiff MUST notify the court. Failure to do so can
result in the dismissal of the case. Torrez must give notice of
a new address even if he is incarcerated. Torrez should write
PLEASE NOTE MY NEW ADDRESS on the notice. It is
not enough to just put the new address on a letter without
indicating that it is a new address. If Torrez has more than one
pending case, then he should indicate all of the case numbers
in the notification of change of address. Torrez should also
notify the defendants or their attorneys of his new address.
(10) Torrez shall use the Prisoner Efiling Program when filing
documents with the court.
So ordered.
All Citations
Not Reported in Fed. Supp., 2017 WL 3841681
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