Coleman v. Tomprowski et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WINDSOR COLEMAN,
Plaintiff,
V.
JULIE WOLCOTT, WILLI.AM:
TOMPOROWKSI, JOHN DOE/MR.H.,
ANTHONY ANNUCCI, DANIEL
MARTUSCELLO, III, FIVE POINTS
CORRECTIONAL FACILITY
SUPERINTENDENT JOHN DOE,
ANTHONY RODRIGUEZ, C.O. EBERT,
C.O. CORNMILLER, C.O. FORD,
JOSEPH NOETH, SORC
LITTLEJOHN, ANNE MARIE
MCGRATH, CHAD FREDERICKSON,
CYNTHIA KAHN, LAKEVIEW
CORRECTIONAL FACILITY
SUPERINTENDENT KUBIK,
MIDDLEBROOK, GEORGE POFF,
C.O. FITSHANS, D.S.S.
STACKOWSKI, D.S.S. RACZKOWSKI,
NEW YORK STATE DEPARTMENT
OF CORRECTIONS AND
COMMUNITY SUPERVISION, NEW
YORK STATE DEPARTMENT OF
MENTAL HEALTH SERVICE, NEW
YORK STATE ATTORNEY
GENERALS ENTITY/OFFICE, NEW
YORK STATE GOVERNOR
ENTITY/OFFICE, AND JOHN DOE##
3, 5, 6, 7, 8, 9, 10,1
Defendants.
24-CV-6182-MAV
ORDER
1 The Clerk of Court is directed to amend the caption as it appears above. The caption includes only
those defendants identified in the second amended complaint, ECF No. 118-11, who are connected to
correctional facilities located in this District.
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INTRODUCTION
Pro se plaintiff, Windsor Coleman, a prisoner at Midstate Correctional Facility
("Midstate"), initially filed an action in the Northern District of New York, Santos et
al. v. Parmitel et al., 9:23-CV-401-GTS-TWD ("Northern District Action"); seeking
relief under 42 U.S.C. § 1983. ECF No. 1. He also filed an application to proceed in
forma pauperis, which was granted. ECF Nos. 7, 10. After Coleman filed an amended
complaint, ECF No. 14, the Northern District Court severed Defendants William
Tomporowski ("Tomporowski"), 2 Attica Superintendent Julie Wolcott ("Wolcott"), and
John Doe/Mr. H, as well as all claims against them, and transferred these Defendants
and claims to this Court. ECF No. 36. Upon receipt of the transfer, the Clerk's Office
opened this case ("24-CV-6182"). ECF No. 37.
On June 7, 2024, Coleman filed a second amended complaint in the Northern
District 	Action. 	Shortly 	thereafter, 	the 	Northern 	District 	severed 	defendants
Anthony Annucci ("Annucci") and Daniel Martuscello III ("Martuscello") and all
claims against them and transferred them to this District. Upon receipt of the
transfer, the Clerk's Office opened case number 6:24-CV-6388-FPG ("24-CV-6388"),
ECF Nos. 45, 46.
The Court consolidated cases 24-CV-06388 (now closed) and 24-CV-6182 (lead
case). ECF No. 61. The second amended complaint in 24-CV-6388 was docketed as
the second supplement to the amended complaint in this action. ECF No. 	14-3.
2 In the second amended complaint he is identified as W. Tomprowski, but the Valentin response,
ECF No. 114, identifies him as William Tomporowski.
2
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Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the Court screened the amended
complaint, ECF No. 14, as supplemented, ECF Nos. 14-2 and 14-3, (collectively, the
"amended complaint"), and permitted Coleman's Eighth Amendment claims against
Tomporowski and Annucci arising from his SHU confinement to proceed to service.
ECF No. 112 ("initial screening order"). Coleman was permitted to file a second
amended complaint concerning violations of his rights under the First, Fourth, Fifth,
Eighth, and Fourteenth Amendments arising from events which occurred at Attica
Correctional Facility ("Attica"), Lakeview Shock Incarceration Correctional Facility
("Lakeview"), and Wende Correctional Facility ("Wende").
Coleman 	has 	since 	filed 	a 	321-paragraph 	second 	amended 	complaint
(captioned 	amended 	complaint) 	(ECF 	No. 	118-11) 	with 	nearly 	700 	pages 	of
attachments 	(ECF Nos. 	118-1-18-10) 3 against 66 named Defendants, 	spanmng
events 	at 	Clinton 	Correctional 	Facility 	("Clinton"), 	Midstate, 	Green 	Haven
Correctional 	Facility 	("Green 	Haven''), 	Attica, 	Lakeview, 	and 	Five 	Points
Correctional Facility ("Five Points") over a period of years, 4 which the Court now
screens pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). 5
3 Although Coleman has filed a number of additional exhibits since filing the second amended
complaint, ECF Nos. 122-128, "[i]t is not the Court's responsibility to scour those exhibits and attempt
to manufacture a cause of action from the information contained in those materials." Belardo v.
Annucci, No. 9:22-CV-0032 (DNH/ATB), 2022 WL 22889131, at *3 (N.D.N.Y. May 10, 2022).
4 The Court has done its best to account for all of the allegations, claims, and defendants arising in
this District, but the expansive nature of the second amended complaint has made that a difficult task.
5 Coleman has exceeded the scope of amendment permitted by the initial screening order, but because
of his pro se status, the Court has exercised its discretion and screened all discernable claims that
occurred in this District.
3
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For the reasons that follow, the claims and defendants arising from Coleman's
confinement at Clinton and Midstate are severed and transferred to the Northern
District of New York. As set forth in detail below, some of Coleman's remaining claims
may proceed to service, while other claims are either dismissed with prejudice or
without prejudice.
BACKGROUND
Coleman's familiarity 	with the 	initial screening order 	[ECF 	No. 	112] 	is
presumed. As noted in that order, 28 U.S.C. § 1915A requires the Court to review "a
complaint in a civil action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity," and to dismiss that complaint
if it "(1) is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or (2) seeks monetary relief from a defendant who is immune from such
relief." ECF No. 112 at 9.
In evaluating the complaint, the Court must accept all factual allegations as
true and draw all inferences in the plaintiffs favor. Id. (citing Larkin v. Savage, 318
F.3d 138, 139 (2d Cir. 2003)). Accordingly, the recitation of facts throughout this
Decision and Order presume the truth of Coleman's factual allegations for the
purposes of this Order only; they are not factual findings of this Court.
The events addressed in the second amended complaint span conduct that
occurred at facilities within and outside of this District. This Order addresses only
those events that occurred at facilities in this District-i.e., Lakeview, Attica, and
Five Points.
4
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Lakeview: October 2021-2022
Coleman alleges that he was transferred to Lakeview in October 2021. ECF
No. 118-11 at ,r 186. Although it is unclear how long Coleman remained at Lakeview,
during this period of incarceration, cell-side sick calls were conducted in violation of
the Health Insurance Portability and Accountability Act ("HIPAA''). Id. at ,r 187.
Attica: August IO-September 21, 2022
Coleman was transferred from Auburn Correctional Facility ("Auburn") to
Attica on August 10, 2022. Id. at ,r 202. Upon his arrival at Attica, Coleman was
served with a misbehavior report carried over from Auburn, causing him to be placed
in Special Housing Unit ("SHU") confinement with a cell shield "that contained feces,
urine, and dirt stains." Id. at ,r 203. Coleman promptly complained to Tomporowski
and requested a change of clothes and removal of the cell shield, as Coleman "did not
receive a cell shield order." Id. at ,r,r 138, 203.
Coleman received a sentence of 1,460 days of SHU confinement with a loss of
commissary and packages following 	an August 	12, 	2022 hearing conducted by
Stackowski, Auburn's Deputy Superintendent of Security. Id. at ,r,r 102, 204. On
August 16, 2022, 	Coleman was placed on a "restricted diet." Id. 	at ,r 205. 	The
following day, Coleman informed Tomporowski that restricted meals were unlawful,
and he was taken off the restricted diet before lunch that same day. Id. at ,r 206.
Based on false information provided by Tomporowski, the cell shield order was
renewed, without being cleaned, on August 19 and 26, 2022. Id. at ,r 207. Coleman
contends that this occurred in retaliation for his alleged assault on staff. Id.
5
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On August 26, 2022, Coleman received a response to his grievance complaining
of "no bucket, no change of clothes, no pillow, and a renewed cell shield without being
provided a copy of the original cell shield order." Id. at ,r 208. Tomporowski lied in his
response to the grievance that Coleman was given the missing items. Id. Several days
later, Coleman was provided with a shirt, a pair of boxer shorts, and socks, but he
never received a pillow, bucket for hot water, or uniform. Id. at ,r 209.
On 	August 	27, 	2022, 	Coleman 	complained 	to 	Deputy 	Superintendent
Middlebrook ("Middlebrook"), the Law Library Administrator, that a law library
officer refused to give him a library request form. Id at ,r,r 210, 144. Coleman believed
this refusal was an act of retaliation. Id. He filled out additional request forms on
September 5 and September 8, 2022, but the requested materials were not provided
until September 11, 2022. Id. 	at ,r 210. His repeated requests for a notary went
unanswered. Id.
On August 30, 2022, Coleman wrote a letter to Wolcott and requested that she
preserve certain video and audio evidence in relation to his litigation. Id. at ,r 211.
On September 13, 2022, Coleman wrote to Wolcott to inform her that he had not been
provided with his personal property or a comb and toothpaste. Id.
In 	total, 	Coleman 	alleges 	that 	he 	spent 	42 	consecutive 	days 	in 	SHU
confinement at Attica before being transferred to Midstate Correctional Facility. Id.
at ,r 212. He was strip frisked before his transfer. Id.
Five Points: August 21-September 11, 2023
6
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Following his incarceration at Midstate and Green Haven, Coleman arrived at
Five Points on August 21, 2023 for a court appearance. Id. at ,r 221. While at Five
Points, Coleman was housed in the Residential Rehabilitation Unit ("RRU") and, for
20 consecutive days, was "not afforded seven hours [of] out-of-cell activities." Id. at
,r,r 221-22. Coleman was strip frisked prior to being transferred to Green Haven on
September 11, 2023. Id. at ,r 223.
Lakeview: December 2023-February 2024
Coleman was transferred to Lakeview on December 15, 2023. Id. at ,r 225.
There, 	he 	was 	not 	afforded 	"seven 	hours 	[of] 	out-of-cell 	activities 	daily," 	"an
unrestricted commissary purchase of $90," or "unrestricted packages consisting of
food, bedding, and clothing for the entirety of [Coleman's] stay at Lakeview," which
ended on February 26, 2024. Id. at ,r 226. On the day of his transfer to Wende,
Coleman 	was 	"sexually 	assaulted" 	by 	Correction 	Officer 	Chad 	Frederickson
("Frederickson"), who "groped" his genitals during a "wellness check" in his cell. Id.
at ,r,r 141, 227. Coleman was then strip frisked when he arrived at Wende. Id. at
,r 227.
Attica: March 2024-April 2025
Coleman returned to Attica on March 4, 2024. Id. at ,r 228. On March 18, 2024,
he was found guilty of charges arising at Lakeview "without being afforded counsel."
Id. 	at ,r 230. Following the completion of his disciplinary hearing, Tomporowski
threatened Coleman for the grievances he had filed in 2022. Id. At some point
7
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thereafter, Tomporowski issued a false and retaliatory misbehavior report. Id. at
,r 234.
On April 1, 2024, Coleman was found guilty of the charges in that misbehavior
report at a hearing presided over by Supervising Offender Rehabilitation Coordinator
Littlejohn ("Littlejohn''). Id. at ,r,r 129, 234. Littlejohn "sanctioned [Coleman] to loss
of commissary, loss of packages, and loss of static tablet in a total disregard for" the
Humane Alternative 	Long Term 	Solitary 	Confinement Act 	("HALT Act"), 	N.Y.
Correct. Law § 137, which prohibits "limitations on food, 	clothing, bedding, and
services as a form of punishment." Id. at ,r 235.
After Coleman told Littlejohn that the video of the March 18, 2024 incident
underlying the misbehavior report was edited, Littlejohn wrote a different hearing
tape number on the disposition. Id. Coleman believes that this was done "to cover-
up" that an altered video was used at the hearing. Id.
On March 20, 2024, Coleman was moved from the SHU to the RRU. Id. at
,r 231. 6 Coleman "was not provided seven hours [of] out-of-cell activities, a storage
container, initial clothing, two ... net bags, or cleaning supplies." Id. He was housed
in "a filthy cell with dirty ventilation, a cell shield restricting his breathing, and a
molded cieling [sic]." Id. The cell did not have hot water or an electrical outlet. Id.
6 The HALT Act created RRUs. See DeJesus v. Palmer, No. 22-CV-716 (JLS), 2024 WL 2818879, at *2
n.3 (W.D.N.Y. May 31, 2024). These units are intended "for inmates who cannot enter segregated
confinement and are defined as 'therapeutic and trauma-informed, and aim to address individual
treatment and rehabilitation needs and underlying causes of problematic behaviors."' Id. (quoting N.Y.
Correct. Law§ 2(34)). ''Pursuant to the HALT Act, individuals in segregated confinement receive four
hours of out of cell programming, including one hour of recreation, and individuals in RRU s receive at
least six hours of out of cell programming with an additional hour of recreation." Id. (citing at N.Y.
Correct. Law § 137(6)G)(ii)).
8
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Coleman wrote letters and filed grievances complaining of his conditions of
confinement. Id. at ,r,r 233, 252. Coleman learned that Martuscello has the "Attica
RRU on ... electronic deprivation to punish 'Assholes' as he discriminates against
[inmates] with disciplinary histories." Id. at ,r 252.
At one point, Coleman alleges that the retaliatory cell shield remained on the
cell until April 27, 2024, id. at ,r 242, elsewhere he states that it was not removed
until January or February of 2025. Id. at ,r 264. On December 31, 2024, "Raczcowski
biasly [sic] responded to ... Coleman's cell shield complaints which caused C.O.
McCarthy to not feed Plaintiff." Id. at ,r 263.
For a court appearance on March 26, 2024, and after his return from medical
on April 8 and August 15, Coleman was strip searched despite his requests to be body
scanned instead. Id. at ,r,r 232, 238, 254. The April 8, 2024 strip frisk was recorded.
Id. ,r 238. Coleman alleges that the strip frisks violate his "religious beliefs as a[n]
Isr[ae]lite who follows the Torah[.]" Id. at ,r 276.
Another strip frisk was conducted on November 22, 2024 by Correction Officer
Cornmiller ("Cornmiller") upon Coleman's return from a visit. Id. at ,r 259. During
this strip frisk, Cornmiller stared at his genitals while Correction Officer Fitshans
("Fitshans") and John Doe #3 "laughed hysterically." Id. 	Coleman was forced to
remain naked and cold for over 30 minutes, which they found "amusing." Id.
9
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Coleman "later was extracted" 7 at Middlebrook's direction and "forced to
spread his buttocks" as Fitshans, Cornmiller, and John Doe# 3 "continuously laughed
as [he] was degraded[.]" Id. This strip frisk was recorded by security cameras and
"later 	used 	to 	further 	degrade 	and 	humiliate ... Coleman 	at 	a 	Tier 	3
Superintendent's Hearing." Id. Following this strip frisk, Coleman was placed in the
contraband watch room for four to five days. Id. at ,r 260.
This strip frisk incident resulted in a misbehavior report, and Coleman was
found guilty of the charges in the misbehavior report "without being provided a free
attorney[.]" Id. at ,r 261. After this determination was affirmed, Coleman appealed it
to the Albany Supreme Court, where it remains pending. Id.
On April 7, 2024, Coleman was "drugged, sexually violated." Id. 	at ,r 237.
Thereafter, Fitshans "forcefully slammed [Coleman] onto a stretcher and brought him
to medical." Id. 8
Coleman's cell was searched on April 27, 2024 by unidentified employees who
"tampered" with his legal papers and "removed a letter [he] wrote to ... Martuscello
regarding sexual violations/body scan alternative to strip frisks." Id. at ,r 242. When
Coleman returned to his cell from a medical visit on August 15, 2024, his logbook,
which documented instances of cruel and unusual punishment, was "gone." Id. at
7 Coleman does not allege that this occurred on a different day. The Court is therefore treating these
as back-to-back strip frisks that occurred on November 22, 2024.
8 The individuals who drugged and sexually violated Coleman are not identified. Fitshans's
involvement appears to be limited to the use of force.
10
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,r 254. "[M]ultiple documents" were also missing following an August 21, 2024 cell
search. Id. at ,r 256.
On May 8, 2024, 	a "cell-side sick call" was conducted by an unidentified
individual in violation of Coleman's HIPAA rights. Id. at ,r 245. Although Coleman
was not subject to a restraint order, he was forced to wear restraints. Id. at ,r 246
n.17. Correction Officer Ford "lied" when he reported on May 18, 2024 that Coleman
"refused to return his feed-up tray and made throwing motions." Id. at ,r 247.
On April 18, April 22, May 6, and May 21, 2024, unidentified correction officers
"purposefully flooded the toilets ... causing urine and feces to cover [Coleman.]" Id.
at ,r,r 239, 240, 244, 248. This flooding also caused some of Coleman's legal papers to
be destroyed. Id. at ,r,r 244, 248. No cleaning supplies were provided and Coleman
was not moved. Id. at ,r,r 240, 244. Despite Wolcott witnessing the flood of human
waste during her weekly walk-throughs, and Coleman and other inmates begging her
to be moved, nothing was done. Id. at ,r 248. On May 22, 2024, the B-North Gallery
was 	given 	a 	"mop, 	broom, 	and 	rag 	to 	clean 	the 	feces 	and 	urine," 	but 	no
"decontaminating supplies," which caused the smell to remain for "several weeks."
Id. at ,r 249.
From May 21 to June 3, 2024, Coleman was on a hunger strike during which
he refused 40 consecutive meals, but "DOCCS employees" refused to record this in
order "to prevent a documented hunger strike." Id. at ,r 250. Specifically, he identifies
John Doe # 	3 as having served him over ten meals that were refused but not
documented. Id. at ,r 251. Coleman made Wolcott aware that he was on a hunger
11
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strike that was not documented, but she disregarded this information and failed,
along with Governor Kathy Hochul ("Governor"), Attorney General Letitia James
("Attorney General"), Martuscello, and Anthony Rodriguez ("Rodriguez"), in their
duty to "notify OMH [Office of Mental Health] of a suicide attempt[.]" Id. at ,r 250
n.19.
On August 14, 2024, Coleman was told to take two Suboxins by Registered
Nurse L. Id. at ,r 253. He was later escorted to medical because he was given incorrect
medicine. Id.
Correction 	Officer 	Ebert 	("Ebert"), 	who 	made 	"vulgarities 	about Jews[,]"
purposefully did not give Coleman his Passover meal, id. at ,r 241, and ate Coleman's
Sukkot Holiday meal in 2024, id. at ,r 258. That year Coleman also did not receive his
Rosh Hashanah meal. Id. at ,r 258. On November 17, 2024, Ebert, "accidentally gave
[Coleman] the wrong meal and then refused to give [him] the correct meal[.]" Id. at
,r 262.
On August 16, 2024, Martuscello and the Governor had John Doe #9 respond
to his letter concerning "religious, sexual (strip frisk), and HIPPA violations." Id. at
,r 255. The referenced response letter was sent by JeffMcKoy, Deputy Commissioner
for Program Services, who informed Coleman that "[t]he facility was contacted
regarding [his] concerns and staff has advised that [he was] presented with and
accepted a religious meal menu that accommodates [his] known medical needs[.]"
ECF No. 68 at 1. Coleman was also informed that his concerns concerning strip frisks
12
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"were brought to the attention of the facility and the facility assured that all strip
frisks are conducted in accordance with Directive #4910." Id.
The DOCCS's correction officer strike that began on February 28, 2025 caused
Coleman to be confined to his Attica cell 24 hours a day, which continued until he
was transferred to Midstate on April 16, 2025. ECF No. 118-11 at ,r,r 192, 265 n.24.
Coleman 	alleges 	violations 	of 	the 	First, 	Fourth, 	Fifth, 	Sixth, 	Eighth,
Thirteenth, and Fourteenth Amendments. Id. 	at ,r 66. 	Coleman requests money
damages, as well as declaratory and injunctive relief. Id. at ,r 79. He further seeks
class action certification. Id.
STANDARD OF REVIEW
A court shall dismiss a complaint in a civil action in which a prisoner seeks
redress from a governmental entity, or an officer or employee of a governmental
entity, if the court determines the action "(1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or (2) seeks monetary relief from a defendant
who 	is 	immune 	from 	such 	relief." 	28 	U.S.C. 	§ 	1915A(b)(l)-(2); 	see 	28 	U.S.C.
§ 1915(e)(2)(B) (setting forth the same criteria for dismissal). Generally, the Court
will afford a pro se plaintiff an opportunity to amend or to be heard prior to dismissal
"unless the court can rule out any possibility, however unlikely it might be, that an
amended complaint would succeed in stating a claim." Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007) (quoting Gomez v. USAA Federal Savings Bank, 171 F.3d 794, 796
(2d Cir. 1999)). Permission to amend, however, "is not required where the plaintiff
has already been afforded the opportunity to amend." Bivona v. McLean, No. 9:19-
13
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CV-0303(MAD)(TWD), 2019 WL 2250553, at *5 (N.D.N.Y. May 24, 2019) (citing
cases); Gomez, 171 F.3d at 796 ("[A] pro se plaintiff who is proceeding in forma
pauperis should be afforded the same opportunity as a pro se fee-paid plaintiff to
amend his complaint prior to its dismissal for failure to state a claim."); Cancel v.
New York City Hum. Res. Admin./Dep't of Soc. Servs., 527 F. App'x 42, 44 (2d Cir.
2013) (summary order) ("[T]he district court had already permitted [the plaintiff] to
amend his complaint once, and nothing in his amended complaint suggested that he
would be able to state a valid ... claim if he were granted leave to amend a second
time. Therefore, granting [the plaintiff] leave to amend his amended complaint as to
these claims would have been futile."); Cato v. Zweller, No. 6:21-CV-6207 EAW, 2023
WL 8653857, at *2 (W.D.N.Y. Dec. 14, 2023) (dismissing the amended complaint with
prejudice because it "does not remedy any of the pleading deficiencies identified in
the Screening Order").
DISCUSSION
I. 	Claims Previously Permitted to Proceed to Service
The Court previously permitted the following claims to proceed to service:
Coleman's 	Eighth 	Amendment 	claims 	against 	Tomporowski 	concerning 	the
conditions of his SHU confinement from August through September 2022 and against
Annucci arising from violations of the 	HALT Act in connection with his 	SHU
confinement that began on August 10, 2022 at Attica. See ECF No. 112 at 18.
II. 	Severance and Transfer of Claims and Defendants
Under 28 U.S.C. § 139l(b), a civil action may be brought in:
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(1) a judicial district in which any defendant resides, if all defendants
are residents of the State in which the district is located;
(2) a 	judicial district in which a 	substantial part of the 	events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as
provided in this section, any judicial district in which any defendant
is subject to the court's personal jurisdiction with respect to such
action.
28 U.S.C. § 1391(b). For the "convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to any other district or division
where it might have been brought .... " 28 U.S.C. § 1404(a).
Federal Rule of Civil Procedure 18(a) permits a plaintiff to join as many claims
as the plaintiff may have against a particular defendant, but Fed. R. Civ. P. 20(a)(2)
does not allow a plaintiff to pursue "unrelated claims against multiple defendants."
Reed v. City of N. Y., No. 1:20-CV-8352 (LLS), 2020 WL 7389095, at *4 (S.D.N.Y. Dec.
15, 2020). To remedy defects with the joinder of parties and claims, Fed. R. Civ. P. 21
provides that the court may, sua sponte, "sever any claim against a party."
In determining whether to sever a claim, courts consider the following:
(1) whether the claims arise out of the same transaction or occurrence;
(2) whether the claims present some common questions of law or fact;
(3) whether settlement of the claims or judicial economy would be
facilitated; (4) whether prejudice would be avoided if severance were
granted; and (5) whether different witnesses and documentary proof are
required for the separate claims.
Gentile v. Latona, No. 21-CV-1100 (JLS), 2022 WL 19836964, at *3 (W.D.N.Y. Sept.
20, 2022) (quoting Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 580
(E.D.N.Y. 1999)).
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"Where 	the 	'administration 	of justice 	would 	be 	materially 	advanced 	by
severance and transfer, a court may properly sever the claims against one or more
defendants for the purpose of permitting the transfer of the action against other
defendants."' McTerrell v. Five Points C.F., No. 22-CV-331 (JLS), 2023 WL 7474975,
at *7 (W.D.N.Y. July 28, 2023) (quoting Cain v. New York State Bd. of Elections, 630
F. 	Supp. 	221, 	225-26 	(E.D.N.Y. 	1986)). The "decision to 	sever lies 'within the
discretion of the Court."' Id. (quoting Cain, 630 F. Supp. at 225).
Coleman raises claims arising from his confinement at Clinton (ECF No. 118-
11 at ,r,r 147-85) and Midstate, (id. at ,r,r 213-17), both located within the geographic
confines of the Northern District of New York. Those claims are more appropriately
heard in that District. 	There is neither complete overlap in defendants nor claims
with the claims and defendants arising from Coleman's confinement in this District.
For instance, Coleman's claims arising from his confinement at Clinton concern
COVID-19 measures and excessive force incidents. ECF No. 118-11 at ,r,r 147-80.
Likewise, Coleman's claims arising from his confinement at Midstate concern the
conditions of being housed in a step down to population ("SDP") unit. Id. at ,r,r 213-
17. The Court is also mindful of the burden created by requiring individuals who are
employed and most likely reside in the Northern District to travel to the Western
District to defend allegations that occurred in the Northern District. See Gentile, 2022
WL 19836964, at *3.
Pursuant to Fed. R. Civ. P. 21 and 28 U.S.C. § 1404(a), the Court exercises its
discretion to sever the claims arising from Coleman's confinement at Clinton and
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Midstate. These claims and defendants are transferred to the Northern District of
New Yorkin the interests of justice and judicial efficiency. The Court makes no ruling
as to the sufficiency of the claims arising from Coleman's confinement at Clinton or
Midstate and leaves that determination to the Northern District of New York.
The severance and transfer to the Northern District of New York shall include
Defendants E. Castine, J. Friend, K. Guynup, Wrag Laporte, C. Lawfler, Adam Lord,
Justin Mahan, 	J. 	Mullady, 	Zachary Buckley, 	Michael Moran, 	J. 	Newphew, 	N.
Johnston, Brian Poupore, D. Bombardier, Austin Newell, Jim Vann, Stacey Manor,
Torrin Fitten, 9 C.O. Lamoy, Andrew Cymbrak, C. Gadway, Matthew Liberty, D.
Mason, Terry Allen, Lt. Guynup, Earl Bell, David Duquette, Kevin Santo, Gregory
King, Chad Rodier, C.H.O. Liberty, John Doe ##4, 7, Mark Passage, Brian Hilton.
Additionally, the claims arising from Coleman's confinement at Clinton and Midstate
identify Defendants Annucci, Martuscello, New York State Governor Kathy Hocul
("Governor"), Joseph Noeth, Anne Marie McGrath, and John Doe ##8-10, who are
also Defendants to the claims remaining in this District. ECF No 118-11 at ,r 146 n.3.
The claims against these Defendants that relate to incidents that occurred at Clinton
and Midstate are severed and transferred to the Northern District of New York. They
otherwise remain Defendants to the claims remaining in this District. 10
9 This defendant is also spelled Torin Fittin.
10 The Court recognizes that Coleman also asserts claims against John Doe #2 arising from his
confinement at Green Haven-a facility located in the Southern District of New York. The skeletal
allegations concerning Coleman's brief confinement at Green Haven, which encompass a single strip
frisk upon his arrival and one day of being in restraints for some unspecified period and not provided
seven hours of out-of-cell activities, fall well short of stating a plausible claim. ECF No. 118-11 at
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III. 	Sovereign Immunity
"Unless a State has waived its Eleventh Amendment immunity or Congress
has overridden it ... a State cannot be sued directly in its own name regardless of
the relief sought." Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985); Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984). New York has not
waived its Eleventh Amendment immunity to suit under § 1983, see Trotman v.
Palisades Interstate Park Comm'n, 	557 F.2d 35, 38-40 (2d Cir. 1977), and state
sovereign immunity has not been abrogated by§ 1983, see Will v. Mich. Dep't of State
Police, 491 U.S. 58, 65-66 (1989); Dube v. State Univ. of N. Y., 900 F.2d 587, 594 (2d
Cir. 1990).
The Eleventh Amendment bar extends to arms of the state and state officials
sued in their official capacities for monetary damages. Woods v. Rondout Valley Cent.
Sch. Dist. Bd. of Educ., 466 F.3d 232,236 (2d Cir. 2006) (arms of the state); Graham,
473 U.S. at 169 (official capacity).
Accordingly, Coleman's claims against the New York State Department of
Corrections ("DOCCS"), the New York State Department of Mental Health, New York
State Attorney General's Office, and New York State Governor's Office are dismissed
ifif123, 218-220. Therefore, these claims are dismissed without prejudice. If and when these claims
are re alleged, the Court will address severance and transfer.
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without prejudice. 11 Coleman's claims against the individual Defendants in their
official capacity for monetary damages are also dismissed without prejudice.1 2
IV. 	First Amendment Claims
A. 	Retaliation
As set forth in the initial screening order, ECF No. 	112 at 21-22, "[i]t is
axiomatic that prison officials may not retaliate against prisoners for exercising their
constitutional rights." Grant v. Shields, 1:19-CV-1188 EAW, 2022 WL3587754, at *3
(W.D.N.Y. Aug. 22, 2022). To allege a§ 1983 retaliation claim, a prisoner must show:
"(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 v. Goard, 558 F.3d
119, 128 (2d Cir. 2009).
Only "retaliatory conduct that would 'deter a similarly situated individual of
ordinary firmness from exercising his constitutional rights"' constitutes an "adverse
action." Lashley v. Wakefield, 483 F. Supp. 2d 297, 300 (W.D.N.Y. 2007) (alteration
omitted) (quoting Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004)). "This objective
11 To the extent Eleventh Amendment dismissals have been found to be jurisdictional, the dismissal
is without prejudice. See Karupaiyan v. New York, No. 23-1257, 2024 WL 2174272, at *2 (2d Cir. May
15, 2024) (summary order) ("[B]ecause the district court lacked jurisdiction over the claims against the
State of New York, it was erroneous to dismiss those claims with prejudice rather than without
prejudice.").
12 Where, as here, "a pro se litigant does not specify in what capacity the individual defendants are
being sued, courts generally 'liberally construe the complaint as alleging both official and individual
capacity claims."' Anderson v. Pedalty, No. 14-CV-00192, 2015 WL 1735192, at *3 (W.D.N.Y. Apr. 16,
2015) (quoting McCloud v. Kane, 491 F. Supp. 2d 312, 316 (E.D.N.Y. 2007)).
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test applies even if the plaintiff was not himself subjectively deterred from exercising
his 	rights." Burroughs v. 	Mitchell, 	325 F. 	Supp. 	3d 249, 	280 (N.D.N.Y. 	2018).
Moreover, courts recognize that retaliation claims by prisoners are "prone to abuse"
since prisoners 	could potentially "claim retaliation based on any decision they
dislike." 	Vazquez v. 	City of New 	York, 	No. 	1:21-CV-01573 (PAE)(VF), 	2022 WL
2704763, at *13 (S.D.N.Y. June 17, 2022) (quoting Graham v. Henderson, 89 F.3d 75,
79 (2d Cir. 1996)), report and recommendation adopted, 2022 WL 2704469 (S.D.N.Y.
July 11, 2022). "Accordingly, even though '[p]risoners ... have a constitutional right
of access to the courts and to petition the government for the redress of grievances,
and prison officials may not retaliate against prisoners for the exercise of that right,'
courts must examine a prisoner's retaliation claim with 'skepticism and particular
care."' 	Speaks 	v. 	Saeed, 	No. 	14-CV-06826 (JMA)(AYS), 	2022 WL 541767, 	at *7
(E.D.N.Y. Feb. 23, 2022) (quoting Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
Coleman alleges a series of acts of alleged retaliation. First, on August 27,
2022, he complained to Middlebrook, the law library administrator, that a law library
officer refused to give him a library request form. ECF No. 118-11 at ,r,r 210, 144.
Coleman alleges that this was an act of retaliation, id., but even assuming that the
refusal to provide him with a library request form constituted an adverse action,
Coleman has not tethered it to any preceding protected activity. His complaint to
Middlebrook arose after the alleged adverse action which undermines the existence
of any causal connection. See Ramrattan v. Guzman, No. 9:22-CV-025(GTS)(ATB),
2023 WL 9552891, at *4 (N.D.N.Y. Aug. 17, 2023) ("[W]here a plaintiff alleges that
20
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an adverse action occurred before the alleged protected activity, plaintiff cannot
establish a causal connection between the two and dismissal is warranted."), report
and recommendation adopted, 2024 WL 165077 (N.D.N.Y. Jan. 16, 2024).
Coleman also alleges that the cell shield renewal orders were in retaliation for
his alleged assault on staff. ECF No. 118-11 at ,r 207. However, "[a]n inmate's assault
on an officer plainly does not constitute protected activity." Jackson v. Dzurenda, No.
3:11-CV-1668 RNC, 2012 WL 5448330, at *2 (D. Conn. Nov. 7, 2012).
Coleman further alleges that on December 31, 2024, "Raczcowski biasly [sic]
responded to ... Coleman's cell shield complaints which caused C.O. McCarthy to not
feed 	[him]." ECF No. 	118-11 at ,r 263. 	Coleman does not supply any facts that
plausibly allege there was a causal connection between his cell shield complaints and
C.O. McCarthy's failure to feed him. For instance, there are no allegations that C.O.
McCarthy knew of Coleman's cell shield complaints, or of the temporal proximity
between the complaints and the adverse action. See Herbert v. Raczkowski, 24-CV-
0485 (JLS), 2024 WL 3694215, at *8 (W.D.N.Y. Aug. 5, 2024) ("Without any non-
conclusory allegations that the grievances and the wrongful conduct alleged are
causally connected, his retaliation claims 	are little more than 'unadorned, the-
defendant-unlawfully-harmed-me 	accusation[s]."') 	(quoting Ashcroft v. 	Iqbal, 	556
U.S. 662, 678 (2009)).
Lastly, Coleman alleges that following the conclusion of his March 18, 2024
disciplinary hearing, Tomporowski threatened him for the grievances he had filed in
2022. ECF No. 	118-11 at ,r 230. At some point shortly thereafter, Tomporowski
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allegedly 	issued 	a 	false 	and 	retaliatory 	misbehavior 	report 	that 	resulted 	in
punishment that contravened the HALT Act. Id. 	at ,r,r 234-235. This sufficiently
alleges an adverse action. See Barnes v. Uhler, No. 9:19-CV-109 (ECC/MJK), 2025
WL 2933583, at *24 (N.D.N.Y. Feb. 21, 2025) ("[T]he filing of a false misbehavior
report that results in some form of punishment that cannot be labeled as de minimis
has been found sufficient to constitute adverse action.") (collecting cases), report and
recommendation adopted, 	2025 	WL 	2751595 	(N.D.N.Y. 	2025). 	Thus, 	Coleman's
allegations are sufficient to state a colorable claim of retaliation that may proceed
against Tomporowski.
As 	for 	the 	other retaliation 	claims, 	Coleman was 	advised in the 	initial
screening order of the elements necessary to state a retaliation claim, and had an
opportunity to replead his retaliation claims to correct the deficiencies. He did not do
so and still gives no indication that he can state a valid claim. The remaining
retaliation claims are therefore dismissed with prejudice. See Abascal v. Hilton, No.
9:04-CV-1401(LEK/GHL), 2008 WL 268366, at *8 (N.D.N.Y. Jan. 	30, 2008) ("Of
course, granting a pro se plaintiff an opportunity to amend is not required where the
plaintiff has already been given a chance to amend his pleading."), aff'd sub nom.
Abascal v. Jarkos, 357 F. App'x 388 (2d Cir. 2009) (summary order); Santos v. Jones,
No. 22-CV-6338-EAW, 2023 WL 3496707, at *8 (W.D.N.Y. May 17, 2023) ("Because
the Court previously apprised Plaintiff of the elements required to allege a failure to
intervene or failure to protect claim ... , dismissal is with prejudice."); Alexander v.
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Doe [l}, 	No. 23-CV-6168-FPG, 2023 WL 7301393, at *5 (W.D.N.Y. Nov. 6, 2023)
(same).
B. 	Access to Courts
On September 5 and September 8, 2022, Coleman requested materials from
the law library, but the materials were delayed several days. ECF No. 118-11 at
,r 210. Coleman's repeated requests for a notary also went unanswered, id., and he
had numerous documents taken from his cell, id. at ,r,r 242, 254, 256. 13
As discussed in the initial screening order, to state a claim for denial of access
to the courts, a plaintiff must allege facts showing that the defendant's conduct "was
deliberate and malicious, and that the defendant's actions resulted in an actual injury
to the plaintiff." Banks v. County of Westchester, 168 F. Supp. 3d 682, 692 (S.D.N.Y.
2016) (citation omitted). To demonstrate actual injury, a plaintiff must allege that
"the defendant's conduct frustrated the plaintiffs efforts to pursue a nonfrivolous
claim." Zeigler v. New York, 	948 F. Supp. 2d 271, 294 (N.D.N.Y. 2013) (citation
omitted). "Mere 'delay in being able to work on one's legal action or communicate with
13 At points, Coleman alleges that he requested that certain videos be preserved. See, e.g., ECF No.
118-11 at ,r 211. While there are no express allegations that Wolcott failed to abide by Coleman's
requests, even if the video was not preserved, these allegations would fail to state a claim. ''In a [§]
1983 claim alleging a cover-up by government agents, the constitutional right at issue is the First
Amendment right of access to courts: the theory is that the cover-up has made it impossible for the
plaintiff to litigate an underlying claim, because material evidence was destroyed, for instance, or
because the statute of limitations expired before the plaintiff discovered the cover-up." Taranto v.
Putnam County, No. 21-CV-2455 (KMK), 2023 WL 6318280, at *13 (S.D.N.Y. Sept. 28, 2023) (quoting
Tavares v. N. Y.C. Health & Hasps. Corp., No. 13-CV-3148, 2015 WL 158863, at *7 (S.D.N.Y. Jan. 13,
2015)). In short, "such claims are available only if a judicial remedy was 'completely foreclosed' by the
... nondisclosure." Sousa v. Marquez, 702 F.3d 124, 128 (2d Cir. 2012) (citation omitted). But the
second amended complaint fails to plausibly allege an actual injury from any impediments to
Coleman's access to the surveillance video.
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the courts does not rise to the level of a constitutional violation."' Davis v. Goard, 320
F.3d 346, 352 (2d Cir. 2003) (citation omitted).
Coleman fails to point to any prejudice arising from the delay in receiving law
library materials, the theft of papers from his cell, or from the absence of notary
services. The initial screening order alerted Coleman to this deficiency, and it has not
been remedied. ECF No. 112 at 23-24. Coleman's access to courts claim arising from
these alleged deprivations is therefore dismissed with prejudice.
C. 	Free Exercise
Coleman alleges that Ebert purposefully did not give him his Passover meal,
ECF No. 118-11 at ,r 241, and ate Coleman's Sukkot Holiday meal in 2024, id. at
,r 258. That year Coleman also did not receive his Rosh Hashanah meal. Id. He also
alleges that the strip frisks violate his "religious beliefs as a[n] Isrealite who follows
the Torah[.]" Id. at ,r 276.
"It 	is 	well-established 	that 	the 	First 	Amendment 	affords 	inmates
constitutional protection to practice their religion." Barry v. Russo, No. 22-CV-3835
(KMK), 2024 WL 965000, at *7 (S.D.N.Y. Mar. 5, 2024) (citing, inter alia, O'Lone v.
Est. of Shabazz, 482 U.S. 342, 348 (1987)). This includes "the right of prisoners to
receive diets consistent with their religious scruples." Kahane v. Carlson, 527 F.2d
492, 495 (2d Cir. 1975).
To state a First Amendment free exercise claim, a prison inmate must allege
that (1) "the practice asserted is religious in the person's scheme of beliefs" and "the
belief is sincerely held"; (2) "the challenged practice of the prison officials infringes
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upon 	the 	religious 	belief'; 	and 	(3) 	"the 	challenged 	practice" 	does 	not 	further
"legitimate penological objectives." Id. at 128 (alteration omitted) (quoting Farid v.
Smith, 850 F.2d 917, 926 (2d Cir. 1988)).
At this stage, Coleman's claim that Ebert purposefully withheld at least two
religious meals is sufficient to state a free exercise of religion claim that may proceed
to service. See Shakur v. Belsky, 391 F.3d 106, 120 (2d Cir. 2004) (allegation that the
defendants refused to allow the plaintiff to attend a "religious feast" sufficed to
plausibly allege a free exercise claim).
Coleman, however, has not stated a free exercise claim arising from the strip
searches. "Generally, strip searches have been upheld as a reasonable security
measure within a correctional facility even in the absence of probable cause as long
as they are related to a legitimate penological goal." Diallo v. New York City, No. 23-
CV-1238 (LAP), 2025 WL 522514, at *12 (S.D.N.Y. Feb. 18, 2025) (citation omitted).
Consequently, 	courts "consistently rejected claims that standard strip 	searches
violate the First Amendment rights of Muslim inmates whose religion might forbid
them from being seen naked by other individuals." Id. (citation omitted). Based on
the limited facts supplied by Coleman, the Court sees no reason why the same result
should not apply here. Because this claim was not previously asserted in the amended
complaint, Coleman's free exercise claim arising from strip searches is dismissed
without prejudice.14
14 Coleman alleges that Martuscello and the Governor had John Doe #9 respond to his letters
concerning "religious, sexual (strip frisk), and HIPPA violations." ECF No. 118-11 at ,r 255. However,
that does not establish the personal involvement of Martuscello or the Governor. See McCrary v.
Marks, 836 F. App'x 73, 74 (2d Cir. 2021) (summary order) ("[T]he most [the plaintiff] has alleged is
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V. 	Fourth Amendment
A. 	Strip Frisks
As set forth in the initial screening order, ECF No. 112 at 25-26, "inmates
retain a limited right to bodily privacy under the Fourth Amendment." Harris v.
Miller, 818 F.3d 49, 57 (2d Cir. 2016). "To state a cognizable privacy claim, an inmate
must allege that (1) he 'exhibited an actual, subjective expectation of bodily privacy,'
and (2) prison officials lacked sufficient justification to intrude on the inmate's Fourth
Amendment rights." Telesford v. Annucci, 693 F. App'x 1, 3 (2d Cir. 2017) (summary
order) (citation modified).
Coleman alleges that his strip frisks at the Attica RRU were conducted in view
of video cameras. See, e.g., ECF No. 118-11 at ,r 238. But "the presence of cameras"
does not make "an otherwise constitutional strip search unconstitutional." Smith v.
City of New York, No. 14 CIV. 5934 JCF, 2015 WL 3929621, at *2 (S.D.N.Y. June 17,
2015); see also Peek v. City of New York, No. 13-CV-4488 AJN, 2014 WL 4160229, at
*3 (S.D.N.Y. Aug. 18, 2014) ("The Court has not located any authority from within or
outside the Second Circuit suggesting that simply capturing a strip search on camera
renders 	the 	search 	unconstitutional. 	To 	the 	contrary, 	courts 	appear 	to 	have
consistently rejected [such] claims[.]").
Coleman has not alleged anything suggesting that there was not a legitimate
purpose to this policy or that it was unjustified, except for his conclusory allegation
that [the supervisor] received his letter and directed someone at the TVPA to respond to it. That is
clearly not enough to state a claim against [the supervisor].").
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that the video of the November 22, 	2024 strip frisk "was used to degrade and
humiliate [him] at a Tier 3 Superintendent's Hearing." ECF No. 118-11 at ,r 259.
Coupled with the conclusory allegation, the related Misbehavior Report indicates that
Coleman was disciplined for urinating on the floor and making threats during the
strip search. ECF No. 93 at 11. Under these circumstances, there is nothing to suggest
that the use of the video of the incident at the disciplinary hearing did not serve a
legitimate purpose.
Because 	Coleman has 	already had an opportunity to replead his 	Fourth
Amendment privacy claim and still gives no indication that he can state a valid claim,
this claim is dismissed with prejudice.
VI. 	Eighth Amendment
A. 	Cell Conditions
"Under the Eighth Amendment, officials may not 'create inhumane prison
conditions, deprive inmates of basic necessities, or fail to protect their health or
safety."' Barnes v. 	County of Monroe, 	85 F. Supp. 3d 696, 	737 (W.D.N.Y. 2015)
(quoting Overton v. Bazzetta, 539 U.S. 126, 137 (2003)). However, "[b]ecause society
does 	not 	expect 	or 	intend 	prison 	conditions 	to 	be 	comfortable, 	only 	extreme
deprivations are sufficient to sustain a 'conditions-of-confinement' claim." Blyden v.
Mancusi, 186 F.3d 252, 263 (2d Cir. 1999) (citation omitted). To allege a plausible
Eighth Amendment claim based on conditions of confinement, an inmate must plead
that "(1) objectively, the deprivation the inmate suffered was sufficiently serious that
he was denied the minimal civilized measure oflife's necessities, and (2) subjectively,
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the 	defendant official acted with a 	sufficiently culpable state of mind such as
deliberate indifference to inmate health or safety." Walker v. Schult, 717 F.3d 119,
125 (2d Cir. 2013) (citation modified).
"To meet the objective element, the inmate must show that the conditions,
either alone or in combination, pose an unreasonable risk of serious damage to his
health." Id. "There is no static test to determine whether a deprivation is sufficiently
serious; the 	conditions themselves must be evaluated in light of contemporary
standards of decency." Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (citation
modified).
"To meet the subjective element, the plaintiff must show that the defendant
acted with 'more than mere negligence."' Walker, 717 F.3d at 125 (quoting Farmer v.
Brennan, 511 U.S. 825, 835 (1994)). "The prison official must know of, and disregard,
an excessive risk to inmate health or safety." Jabbar, 683 F.3d at 57 (citing Farmer,
511 U.S. at 837).
i. 	Waste Discharges at Attica: April and May of 2024
Coleman alleges that unidentified correction officers purposefully flooded an
area with urine and feces in April and May of 2024, and refused to provide any
supplies to clean the waste. ECF No. 18-11 at ,r,r 239,240,244,248. These allegations
plainly satisfy the objective component. He also alleges that Wolcott personally
witnessed this during her weekly walk through and heard requests from Coleman
and other inmates to be moved. Id. at ,r 248. These facts are sufficient at this stage
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to allege a colorable conditions of confinement claim against Wolcott that may proceed
to service.
ii. 	RRU Confinement at Five Points and Attica
Coleman alleges that while in the Five Points RRU from August 21, 2023 to
September 11, 2023 and the Attica RRU from March 20, 2024 to April 16, 2025, he
was denied "seven-hours [of] out-of-cell activities." ECF No. 118-11 at ,r,r 279-80.
Coleman appears to base this Eighth Amendment conditions of confinement
claim on a violation of the HALT Act, which requires that "individuals in RRUs
receive at least six hours of out of cell programming with an additional hour of
recreation." 	DeJesus, 	2024 	WL 	2818879, 	at 	*2 	n.3 	(citing 	N.Y. 	Correct. 	Law
§ 137(6)(j)(ii)). He also points to the use of restraints for out-of-cell activities in
violation of the HALT Act. 	ECF No. 	118-11 at 	,r 78 	(citing N.Y. 	Correct. 	Law
§ 137(6)(j)(vii)).
Coleman further alleges that while in the RRU he was denied "food, bedding,
clothing, 	and services 	(commissary and packages) 	as 	a 	form 	of punishment in
violation of the HALT Act." ECF No. 118-11 at ,r,r 282-83 (citing N.Y. Correct. Law
§ 137(6)(j)(iii) (prohibiting any "limitation on services, treatment, or basic needs such
as clothing, food and bedding shall be imposed as a form ofpunishment.")). 15
15 The Northern District previously dismissed Coleman's state law claims arising from the HALT Act,
explaining that "[a] Section 1983 claim brought in federal court is not the appropriate forum to raise
violations of prison regulations or state law." Coleman v. Annucci, et al., 9:23-cv-00401-GTS-TWD
(N.D.N.Y.), ECF No. 45 at 7 (citations omitted). The Court interprets the second amended complaint
as raising constitutional violations based on the failure to comply with the HALT Act. See, e.g., ECF
No. 118-11 at ,r 78.
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At the screening stage, these deprivations state a colorable Eighth Amendment
claim that may proceed to service against Annucci, Martuscello, Wolcott, Noeth, and
the John Doe Supervisor of Five Points. See Santana v. Quiros, No. 3:21-CV-376
(SVN), 2022 WL 16706959, at *9 (D. Conn. Nov. 4, 2022) (the "Second Circuit has
explained, dismissal is 'especially disfavored' when 'the complaint sets forth a novel
legal theory that can best be assessed after' further factual and legal development"
(quoting Baker v. Cuomo, 58 F.3d 814, 818-19 (2d Cir. 1995), vacated in part on other
grounds sub nom. Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996) (en bane))).
iii. 	Cell Shield, Electricity, and Mold
Coleman's claim against Tomporowski, 	Ford, Wolcott, 	and Cornmiller for
deliberately utilizing a cell shield "to punativly impead [sic]" his "breathing," ECF No
118-11 at ,r 290, in a cell with a moldy ceiling, id. at ,r 231, as well as his claim against
Martuscello for implementing a deprivation order in the RRU that prevented the use
of electricity in the cells, id. at ,r 291, state colorable Eighth Amendment conditions
of confinement claims. See Hicks v. Lannoye, No. 20-CV-505, 2021 WL 2454050, at *1
(E.D. Wis. June 16, 2021) (although later dismissed at summary judgment, plaintiff
"was allowed to proceed on an Eighth Amendment conditions of confinement claim
for having no electricity in his cell for several days").
iv. 	Inadequate Nutrition
Coleman 	makes 	a 	variety 	of 	allegations 	concermng 	being 	placed 	on 	a
"restricted diet." ECF No. 118-11 at ,r 205, not receiving the correct meal, id. at ,r 262,
not being fed by C.O. McCarthy, id. at ,r 263, and having limited access to food while
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in the RRU, id. at ,r 282.
As 	set forth 	in the initial screemng order, 	ECF 	No. 	112 	at 	16-17, 	"the
Constitution requires that prisoners be fed nutritionally adequate food and 'under
certain circumstances a substantial deprivation of food may well be recognized as
being 	of 	constitutional 	dimension."' 	Sankara 	v. 	Montgomery, 	9:16-CV-00885
(FJS/TWD), 2018 WL 4610686, at *8 (N.D.N.Y. June 25, 2018) (quoting Robles v.
Coughlin, 725 F.2d 12, 15 (2d Cir. 1983)), report and recommendation adopted, 2018
WL 3408135 (N.D.N.Y. July 13, 2018). "To establish a valid claim that the denial of
food constitutes an Eighth Amendment violation, one must establish that there was
a sufficiently serious condition that resulted from the food not being received." Lewis
v. Zan, 920 F. Supp. 2d 379, 387 (W.D.N.Y. 2013) (citation modified).
Coleman fails 	to 	plausibly allege 	that 	he 	suffered 	a 	sufficiently ser10us
condition-i.e., "a condition of urgency that may result in degeneration or extreme
pain." Id. (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1988)). Because
Coleman was previously alerted to these deficiencies, had an opportunity to amend,
and gives no indication that he can state a claim, the dismissal of these claims is with
prejudice.
v. 	Cell Confinement During the Strike
Coleman alleges that Ford, John Doe #3, Ebert, Fitshans, and Cornmiller
caused him to be confined in his cell for 24 hours a day from the beginning of the
DOCCS's correction officer strike on February 28, 2025, until his transfer from Attica
to Midstate on April 16, 2025. ECF No. 118-11 at ,r 265 n.24. Coleman alleges that
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he has remained on 24-hour lockdown since his transfer to Midstate, well beyond the
strike. Id. at ,r 265.
"Courts have recognized that some opportunity for exercise must be afforded
to prisoners." Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985). Prison officials
may, 	however, 	"limit an inmate's right to out-of-cell exercise if 'a valid safety
exception or certain unusual circumstances' exist." Santana v. Quiros, No. 3:21-CV-
376(KAD), 2021 WL 2138772, at *4 (D. Conn. May 26, 2021) (quoting Gardner v.
Murphy, 613 F. App'x 40, 42 (2d Cir. 2015) (summary order)). "When prison officials
impose such a safety restriction, they 'must perform a detailed review' of feasible
alternatives." Id. (citation modified) (quoting Gardner, 613 F. App'x at 42).
Coleman's restrictive confinement for more than a month, without any access
to recreation or other out-of-cell activities, is sufficient at this stage to state a
colorable Eighth Amendment claim that may proceed to service against Ford, John
Doe #3, Ebert, Fitshans, and Cornmiller. Whether there were legitimate penological
purposes for this restrictive confinement, which is alleged to have continued well
beyond the strike, is a question that the Court is unable to resolve at this stage.
vi. 	Restraints
Coleman alleges that Annucci enacted a blanket policy on April 21, 2022
requiring all inmates "housed in [SDP]" to be in restraints for all out-of-cell programs.
ECF No. 118-11 at ,r,r 200, 310. The second amended complaint does not, however,
allege that Coleman was in a "step down population" unit or program while confined
during the relevant periods in this District. See id. at ,r,r 136-37, 215-16 (Coleman
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appears to have been in SDP while at Midstate). His remaining claims concerning
the use of restraints appear to have arisen outside of this District while he was
incarcerated at Midstate and Green Haven. Id. at ,r,r 216, 220, 289. Coleman's Eighth
Amendment claims arising from the use of restraints, which are raised for the first
time in the second amended complaint, are therefore dismissed without prejudice.
B. 	Excessive Force
On April 7, 2024, Fitshans "forcefully slammed [Coleman] into a stretcher"
after he was "drugged" and "sexually violated." ECF No. 118-11 at ,r 237. Fitshans
then "brought [Coleman] to medical." Id.
To state a claim for the use of excessive force in violation of the Eighth
Amendment, a plaintiff"must allege two elements, one subjective and one objective."
Crawford v. Cuomo, 796 F.3d 252,256 (2d Cir. 2015).
As to the objective element, a plaintiff "must allege that the conduct was
objectively 	'harmful 	enough' 	or 	'sufficiently 	serious' 	to 	reach 	constitutional
dimensions." Id. (quoting Hudson v. McMillian, 503 U.S. 1, 8, 20 (1992)). Courts
analyze this element according to the nature of the force used, rather than the degree
of injury. See Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) ("Injury and force ... are only
imperfectly correlated, and it is the latter that ultimately counts."). Consequently, a
"malicious use of force to cause harm constitutes an Eighth Amendment violation per
se whether or not significant injury is evident." Griffin v. Crippen, 193 F.3d 89, 91 (2d
Cir. 1999) (citation modified).
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To satisfy the subjective element, a plaintiff must allege that the defendant
acted with a culpable state of mind, the "core ... inquiry" being "whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm." Hudson, 503 U.S. at 7. Not "every malevolent touch,"
however, "gives rise to a federal cause of action." Id. at 9. The Eighth Amendment's
prohibition against excessive force does not extend to "de minimis uses of physical
force, provided that the use of force is not of a sort 'repugnant to the conscience of
mankind."' Id. at 9-10 (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986)).
Without 	additional 	details 	surrounding 	the 	incident, 	Coleman 	has 	not
plausibly alleged either the objective or subjective elements necessary to state an
Eighth Amendment claim. Because this is first time that he has alleged this claim, it
is dismissed without prejudice.
C. 	Sexual Assault
While 	incarcerated 	at 	Wende, 	Coleman 	alleges 	that 	he 	was 	"sexually
assaulted" by Frederickson, who "groped" his genitals during a wellness check in his
cell. ECF No. 118-11 at ,r 227.
"Allegations of sexual abuse or harassment can amount to a violation of a
prisoner's 	right 	to 	be 	free 	from 	cruel 	and 	unusual 	punishment." 	Herbert 	v.
Raczkowski, No. 24-CV-0485 (JLS), 2024 WL 3694215, at *9 (W.D.N.Y. Aug. 5, 2024).
Indeed, "[a] corrections officer's intentional contact with an inmate's genitalia or
other intimate area, which serves no penological purpose and is undertaken with the
intent to gratify the officer's sexual desire or humiliate the inmate, violates the
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Eighth Amendment." Crawford, 796 F.3d at 257. The key inquiry "is whether the
contact is incidental to legitimate official duties, such as a justifiable pat frisk or strip
search, or by contrast whether it is undertaken to arouse or gratify the officer or
humiliate the inmate." Id. at 257-58. "[A] single act of sexual abuse may violate the
Eighth Amendment if ... it is entirely gratuitous and devoid of penological purpose."
Id. at 256.
Whether Frederickson's contact with Coleman's genitals was a routine or
otherwise legitimate part of the wellness check is a question the Court cannot resolve
at 	this 	stage. 	Coleman's 	Eighth 	Amendment 	sexual 	assault 	claim 	against
Frederickson may proceed to service.
Coleman also alleges that on April 7, 2024, he was "drugged, sexually violated".
ECF No. 118-11 at ,r 237. Lacking, however, are any allegations of which defendants,
if any, had personal involvement in this conduct. See Tangreti v. Bachmann, 983 F.3d
609, 618 (2d Cir. 2020) (holding that allegations showing the personal involvement of
each defendant to the alleged deprivation is a pleading requirement). This claim,
which was raised for the first time in the second amended complaint, is therefore
dismissed without prejudice.
D. 	Deliberate Indifference to Medical Care
Coleman alleges that from May 21 to June 3, 2024, he was on a hunger strike
during which he refused 40 consecutive meals, but "DOCCS employees" did not
document this in order "to prevent a documented hunger strike." ECF No. 118-11 at
,r 250. Due to the failure to document his hunger strike, Coleman alleges that OMH
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was not notified of his attempted suicide, which was permitted to continue unabated.
Id.
"In order to establish an Eighth Amendment claim arising out of inadequate
medical care, a prisoner must prove 'deliberate indifference to [his] serious medical
needs."' Collymore v. Myers, 74 F.4th 22, 30 (2d Cir. 2023) (alteration in original)
(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Deliberate indifference can be
"manifested by prison doctors in their response to the prisoner's needs or by prison
guards in intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed." Estelle, 429 U.S. at 104-05. "The
standard 	of 	deliberate 	indifference 	includes 	both 	subjective 	and 	objective
components." Chance, 143 F.3d at 702.
The objective component requires a plaintiff to "show that, while he was
incarcerated, 	he 	suffered from 	a 	medical condition that is, 	'in objective terms,
sufficiently serious."' Mallet v. N. Y. State Dep't of Corr. & Cmty. Supervision, 126
F.4th 125, 132 (2d Cir. 2025) (quoting Chance, 143 F.3d at 702). "Though there is no
single metric" for establishing a "sufficiently serious" medical condition, it "refers to
a 	condition of urgency that may result in degeneration or extreme pain, 	that
significantly affects daily activities, or that involves chronic and substantial pain."
Id. (citation modified). On a spectrum, "[t]he condition need not be 'life-threatening'
or 	'at 	the 	limit 	of human 	ability to 	bear,' 	but 	it 	must 	be 	more 	than 	simply
'uncomfortable and annoying."' Id. (quoting Brock v. Wright, 315 F.3d 158, 163 (2d
Cir. 2003)).
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The subjective component requires that a defendant "knows of and disregards
an excessive risk to inmate health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference." Darby v. Greenman, 14 F.4th 124, 128
(2d Cir. 2021) (quoting Farmer, 511 U.S. at 837). A defendant's '"failure to alleviate a
significant risk that he 	should have perceived but did not' 	does 	not meet this
standard." Id. (quoting Farmer, 511 U.S. at 838).
The substantial risk of harm from skipping 40 consecutive meals is manifest
and satisfies the objective element. As for the subjective element, Coleman alleges
that both John Doe #3 and Wolcott were directly aware that Coleman was on a hunger
strike but did not document or stop it. ECF No. 118-11 at ,r,r 250-51. Wolcott is also
alleged to have had a duty to notify OMH, 16 an entity that presumably could provide
mental health services and attempt to cease the self-harm, but failed to do so. See
Bradshaw v. Gordon, No. 9:21-CV-0645 (GTS/ML), 2022 WL 504974, at *IO (N.D.N.Y.
Feb. 18, 2022) ("[T]he DOCCS Directive on Inmate Hunger Strikes indicates that an
inmate who voluntarily refuses to eat nine consecutive meals is deemed to be 'on a
hunger strike.' The Directive further indicates that an inmate on a hunger strike is
'referred to Health Services and to the 	[OMH] 	staff for counseling and clinical
16 Coleman alleges that the Governor, Attorney General, Martuscello, and others received letters from
him that he was on a hunger strike. ECF No. 118-11 at ,r 250 n.18 (citing letters sent to the Attorney
General and Rodriguez, ECF Nos. 53 and 57, advising them that he was on a hunger strike in protest).
Receipt of a letter, however, is insufficient to establish personal involvement. See Lopez v. Chappius,
No. 6:17-CV-06305 EAW, 2021 WL 859384, at *2 (W.D.N.Y. Mar. 8, 2021) ("Even before Tangreti, it
was 'well-established that a supervisor's failure to respond to a letter of complaint does not provide a
sufficient basis to find that the defendant was personally involved in the deprivation alleged' ...."
(citation omitted)).
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assessment to determine the cause of the inmate's refusal to eat." (citation modified)).
At 	this 	stage, 	these 	allegations 	are 	sufficient 	to 	state 	a 	colorable 	deliberate
indifference claim against John Doe #3 and Wolcott that may proceed to service.
Coleman also alleges that on August 14, 2024, he was erroneously told to take
two Suboxins by Registered Nurse L. ECF No. 118-11 at ,r 253. But Coleman has not
alleged that the medication error was attributable to anything other than negligence
or placed Coleman in a serious risk of harm. To the extent that Coleman has not
previously raised these claims, they are dismissed without prejudice.
E. 	Strip Frisks
As set forth in the initial screening order, under certain limited circumstances,
the manner in which a search is conducted may give rise to an Eighth Amendment
claim. See Crawford, 796 F.3d at 258. The "principal inquiry" a court must make "is
whether the contact is incidental to legitimate official duties, such as a justifiable pat
frisk or strip search, or by contrast whether it is taken to arouse or gratify the officer
or humiliate the inmate." Id. at 257-58. "[P]rison officials looking for contraband may
subject inmates to reasonable strip searches and cavity searches," but such searches
"may not be undertaken maliciously or for the purposes of sexually abusing an
inmate." Id. at 258. Strip frisks are unconstitutional where they do "not serve a
legitimate penological goal, such as ... to intimidate, harass, or punish a prisoner."
Jones v. City of New York, 18-CV-1937 (VSB), 2020 WL 1644009, at *12 (S.D.N.Y.
Apr. 2, 2020) (citation omitted).
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Repeating the claim raised in the amended complaint, ECF No. 14-3 at ,r,r 29-
30, Coleman alleges that he was not given the option of a body scan in lieu of a strip
frisk. He appears to connect this to Martuscello's failure "to implement a directive
regarding when and how to utilize body scanning equiptment [sic] as an alternative
to degrading strip frisks," in contravention to 9 N.Y.C.R.R. § 7640. ECF No. 118-11
at ,r,r 266-67. Nothing, however, in this regulation (9 N.Y.C.R.R. §§ 7640.1-7640.5)
mandates that inmates must be given the option of a body scan in lieu of strip search.
See, e.g., ECF No. 118-11 at ,r,r 232, 238. Nor is there is any such requirement in
DOCCS' Directive No. 4910: Control of and Search for Contraband. ECF No. 14-3 at
161-68. For these reasons, and because Plaintiff was already provided an opportunity
to state this claim, it is dismissed with prejudice.
Except for the November 22, 2024 strip frisks, Coleman does not allege facts
suggesting that these strip frisks had a non-penological purpose. While Coleman
contends that being forced to "spread [his] buttocks" constituted a sexual assault,
ECF No. 118-11 at ,r 297, this described search is consistent with a permissible strip
frisk pursuant to Directive 4910. ECF No. 14-3 at 161 (defining a strip frisk as
involving several possible procedures, including "bending over and spreading their
buttocks to expose their anus[.]").
However, the back-to-back strip frisks conducted on November 22, 2024 by
Cornmiller, Fitshans, and John Doe #3, where they "laughed" at Coleman, stared at
his genitals, and/or forced him to remain naked and cold for over 30 minutes, ECF
No. 	118-11 at ,r 259, suggest that these strip frisks were intended to humiliate
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Coleman. He therefore has stated a colorable Eighth Amendment claim arising from
the November 22, 2024 strip frisks against Cornmiller, Fitshans, and John Doe #3
that may proceed to service.
VII. 	Fourteenth Amendment
A. 	Equal Protection
To the extent that the second amended complaint asserts equal protection
claims against Annucci for his purported failure to implement the HALT Act and
against Martuscello for his strip frisk policy-it fails to state a claim. Coleman fails
to plead facts suggesting that the strip frisk policy or his SHU confinement were
discriminatory or that he was treated differently from other similarly situated
inmates. 	See 	Cromwell 	v. 	Hendel, 	20-CV-317-LJV, 	2022 	WL 	16540353, 	at 	*4
(W.D.N.Y. Oct. 28, 2022) (dismissing equal protection claim where plaintiff has pled
no facts to suggest that any defendant discriminated against him); see also Green v.
Martin, 224 F. Supp. 3d 154, 171 (D. Conn. 2016) (dismissing an equal protection
claim where the plaintiff failed to allege that he was treated any differently from
another prisoner in the context of prison searches). Because the initial screening
order identified these same deficiencies in Coleman's equal protection claims against
Martuscello and Annucci and provided him with the opportunity to amend, these
claims are dismissed with prejudice.
B. 	Due Process
i. 	The April 2024 Disciplinary Hearing
Coleman alleges that on April 1, 2024, he was found guilty of charges stemming
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from a retaliatory false misbehavior report by Tomporowski at a hearing presided
over by Littlejohn. ECF No. 118-11 at ,r 234. After Coleman told Littlejohn that the
video of the March 18, 2024 incident underlying the misbehavior report was edited,
Littlejohn wrote a different hearing tape number on the disposition. Id. at ,r 235.
Coleman believes that this was done "to cover-up" that an altered video was used at
the 	hearing. 	Id. 	Littlejohn ultimately 	sentenced him to 	a 	loss 	of commissary,
packages, and "static tablet" in violation of the HALT Act, which prohibits these
limitations as a form of punishment. Id.
To state a cognizable § 1983 procedural due process claim, a plaintiff must
allege facts demonstrating (1) that he possessed a protected liberty or property
interest, 	and (2) that he was deprived of that interest without constitutionally
sufficient due process. Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989);
accord Bangs v. Smith, 84 F.4th 87, 97 (2d Cir. 2023).
An inmate's liberty interest is implicated by prison discipline only if the
discipline "imposes [an] atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995).
To determine whether an inmate's disciplinary confinement rises to the level of an
atypical and significant hardship, both the conditions of that confinement and their
duration must be alleged, "since especially harsh conditions endured for a brief
interval and somewhat harsh conditions endured for a prolonged interval might both
be atypical." Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir. 1999).
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Constitutionally sufficient due process "afforded a prison inmate do[es] not
equate to 'the full panoply of rights' due to a defendant in a criminal prosecution."
Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (quoting Wolff v. McDonnell, 418 U.S.
539, 556 (1974)). Inmates appearing at a disciplinary hearing must be provided with:
(1) "advance written notice of the charges"; (2) "a hearing affording him a reasonable
opportunity to call witnesses and present documentary evidence"; (3) "a fair and
impartial hearing officer"; and (4) "a written statement of the disposition, including
the evidence relied upon and the reasons for the disciplinary actions taken." Id. (citing
Wolff, 	418 U.S. 	at 	563-67). 	While 	inmates 	do 	not 	have 	a 	right to 	counsel in
disciplinary proceedings, "[p ]rison authorities have a constitutional obligation to
provide assistance to an inmate in marshaling evidence and presenting a defense."
Eng v. Coughlin, 858 F.2d 889, 897 (2d Cir. 1988).
a. 	Littlejohn
Coleman's allegations that Littlejohn intentionally used a doctored video-and
subsequently covered up that use-to find Coleman guilty of the misbehavior report
is sufficient to allege that he was deprived of an impartial hearing officer. At this
stage, he has also sufficiently alleged that a liberty interest was implicated by the
discipline he received, which was in violation of the HALT Act. This claim may
therefore proceed to service against Littlejohn.
b. 	Tomporowski
Generally, "[t]he issuance of false misbehavior reports and provision of false
testimony against an inmate by corrections officers is insufficient on its own to
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establish a denial of due process." Mitchell v. Senkowski, 158 F. App'x 346, 349 (2d
Cir. 2005) (summary order) (citing Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.
1997)). There are two exceptions to this general rule: "when an inmate is able to show
either (1) that he was disciplined without adequate due process as a result of the
report; or (2) that the report was issued in retaliation for exercising a constitutionally
protected right." Willey v. Kirkpatrick, 801 F.3d 51, 63 (2d Cir. 2015).
As alleged, 	Coleman was subjected to a false and retaliatory misbehavior
report by Tomporowski that resulted in discipline without adequate due process.
These facts allege a colorable due process claim that may proceed to service against
Tomporowski for the allegedly false misbehavior report that led to the April 1, 2024
hearing before Littlejohn.
ii. 	December 2024 Disciplinary Hearing
Following the November 22, 2024 strip frisk, Coleman alleges that he received
a misbehavior report and was found guilty of the charges in the misbehavior report
"without being provided a free 	attorney[.]" ECF No. 	118-11 at ,r 261. After this
determination was affirmed, Coleman appealed it to the Albany Supreme Court,
where it remains pending. Id.
Coleman alleges that Annucci and Martuscello were deliberately indifferent in
their failure to abide by the HALT Act and "due process which permits the plaintiff
to be represented by an attorney." Id. at ,r 293. He contends that the failure to provide
him with an attorney resulted in his finding of guilt at six disciplinary hearings. Id.
at ,r 294.
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"[T]here is no right to counsel ... at prison disciplinary hearings." Sira, 380
F.3d at 69 (citing Wolff, 418 U.S. at 567-70). The HALT Act requires that:
Persons at [disciplinary] hearings shall be permitted to be represented
by any attorney or law student, or by any paralegal or incarcerated
person unless the department reasonably disapproves of such paralegal
or incarcerated person based upon objective written criteria developed
by the department.
N.Y. Correct. Law§ 137(6)(1).
While Coleman contends that Annucci and Martuscello failed to enact a policy
to "provid[e] indigent [inmates] an attorney[,]" ECF No. 118-11 at ,r 294 (captioning
the claim, "Compulsion of Free Attorney's [sic]"), the HALT Act requires that inmates
be "permitted to be represented by" an attorney at a disciplinary hearing-not that
an inmate has the right to be provided with a free (i.e., appointed) attorney. This
claim is therefore dismissed with prejudice.
VIII. 	HIPAA
Coleman alleges that on May 8, 2024, an unidentified individual conducted a
"cell-side sick call" in violation of his HIPAA rights. ECF No. 118-11 at ,r 245. He
further alleges that sick calls were conducted in this fashion at the direction of
Wolcott, Raczkowski, and others. Id. at ,r 303. "HIPAA, however, does not create a
private right of action and cannot support a claim under Section 1983." Mendez v.
Quiros, No. 3:16-CV-2097 (VAB), 2017 WL 374462, at *2 (D. Conn. Jan. 25, 2017)
(citing cases). Because amendment would be futile, this claim is dismissed with
prejudice.
IX. 	Conspiracy: 42 U.S.C. §§ 1985 and 1986
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Coleman 	alleges 	that 	Fitshans, 	Cornmiller, 	and 	others 	"conspired 	with
thousands 	of 	other 	[correction 	officers] 	and 	DOCCS 	employees 	to 	obstruct
government administration pursuant to NY Penal Law § 195.05" by preventing "non-
striking 	DOCCS 	employees 	from 	performing 	an 	official function 	by 	means 	of
unlawfully 	striking[.]" 	ECF 	No. 	118-11 	at 	,r 314. 	He 	separately 	alleges 	that
Martuscello and Annucci "separately conspired with ... Noeth in creating unlawful
directives as an act of discrimination towards [inmates] with disciplinary issues." Id.
at ,r 315.
"In order to state a conspiracy claim under 42 U.S.C. § 1985(3), a plaintiff must
show: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the laws, or of equal privileges
and immunities under the laws; (3) an act in furtherance of the conspiracy; (4)
whereby a person is either injured in his person or property or deprived of any right
or privilege of a citizen of the United States." Cine 8KB, Inc. v. Town of Henrietta, 507
F.3d 778, 791 (2d Cir. 2007). Additionally, "[a] § 1985(3) conspiracy must also be
motivated by some racial or perhaps otherwise class-based, invidious discriminatory
animus behind the conspirators' action." Id. 17 42 U.S.C. § 1986 "imposes liability on
an individual who 	has 	knowledge 	of discrimination prohibited 	under 	§ 1985."
Graham, 89 F.3d at 82.
17 The Court does not interpret the second amended complaint to raise a claim under 42 U.S.C. §
1985(2), which bars conspiracies to obstruct justice in state judicial proceedings.
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Initially, Coleman's claim that Defendants conspired to obstruct governmental
administration in violation of NY Penal Law § 195.05, ECF No. 118-11 at ,r 314, is
likely barred by the fact that it is premised on a violation of state law. See Sarner v.
Caldwell-Boyd, No. 3:21-CV-987 (JAM), 2022 WL 4132940, at *6--7 (D. Conn. Sept.
12, 2022) (interpreting Bray v. Alexandria Women's Health Clinic, 506 U.S. 263
(1993) to bar § 1985(3) conspiracy claims premised on state law and noting that
"many other courts have ruled that a§ 1985(3) conspiracy may not be premised on a
conspiracy to deprive a plaintiff of the equal protection of state law").
In any event, Coleman's conclusory allegations of a conspiracy-lacking any
discriminatory racial, 	ethnic, 	or class-based animus-are insufficient to state a
conspiracy 	claim. 	Further, 	because 	the 	Defendants 	are 	all DOCCS 	employees,
Plaintiffs conspiracy claims are barred by the intracorporate conspiracy doctrine,
under which, "employees or agents of a single corporate entity, acting within the
scope of their employment, 	are legally incapable of conspiring together." Ali v.
Connick, 136 F. Supp. 3d 270, 282 (E.D.N.Y. 2015). Given Coleman's pro se status
and the fact that this claim was not previously raised, these claims are dismissed
without prejudice.
X. Administrative Procedures Act ("APA"): 5 U.S.C. § 706
Coleman argues that the failure ofDOCCS to act on a number of his grievance
violates the APA. ECF No. 118-11 at ,r 316. Since "the APA only governs federal
agencies, not state agencies[,]" any amendment would be futile. Samuels v. New York
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Dep't of Lab., No. 23-CV-8004 (LTS), 2025 WL 27737, at *9 (S.D.N.Y. Jan. 3, 2025).
This claim is therefore dismissed with prejudice.
Additionally, "inmate grievance programs created by state law are not required
by the Constitution and consequently allegations that prison officials violated those
procedures do □ not give rise to a cognizable § 1983 claim." Shell v. Brzezniak, 365 F.
Supp. 2d 362, 370 (W.D.N.Y. 2005); see Riddick v. Semple, 731 F. App'x 11, 13 (2d
Cir. 2018) (summary order) (the plaintiffs "claim that defendants violated his due
process rights by restricting his access to the prison's grievance procedures confuses
a state-created procedural entitlement with a constitutional right"). Consequently,
"an 	inmate 	has 	no 	constitutional 	right 	to 	have 	his 	grievances 	processed 	or
investigated in any particular manner." Green v. Herbert, 677 F. Supp. 2d 633, 639
(W.D.N.Y. 2010) (citation modified). Nor is there a "constitutional right of access to
the established inmate grievance program." Rhodes v. Hoy, No. 9:05-CV-836, 2007
WL 1343649, at *6 (N.D.N.Y. May 5, 2007), case dismissed, No. 9:05-CV-836, 2007
WL 1674093 (N.D.N.Y. June 7, 2007). Thus, to the extent Coleman raises this as a
due process claim, ECF No. 118-11 at ,r 317, it is also dismissed with prejudice.
XI. 	Class Action Certification
"Before an action may proceed as a class action ... it must be certified as such
by the Court." Naum v. City of New York, No. 94 CIV. 5747 (DAB), 1996 WL 140305,
at *1 (S.D.N.Y. Mar. 28, 1996) (citing Fed. R. Civ. P. 23(c)(l)). To be certified as a
class 	action, 	the 	requirements 	of Rule 	23 	must 	be 	met, 	including 	that 	"the
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representative parties will fairly and adequately protect the interests of the class."
Fed. R. Civ. P. 23(a)(4).
Prose litigants, however, "may not ... represent the interests of third-parties,"
including other class members. Rodriguez v. Eastman Kodak Co., 88 F. App'x 470,
471 (2d Cir. 2004) (citing Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998)); Kimber
v. Tallon, 556 F. App'x 27, 28 (2d Cir. 2014) ("Generally, it is inappropriate for a pro
se litigant to represent the interests of a class."). Since Coleman does not satisfy the
requirements of Rule 23(a)(4), the Court denies his request for class certification, ECF
No. 118-11 at ,r 79, and will treat this as an individual action. See McLeod v. Crosson,
No. 89 CIV. 1952, 1989 WL 28416, at *1 (S.D.N.Y. Mar. 21, 1989) ("It is well settled
in this circuit that pro se plaintiffs cannot act as class representatives. They do not
satisfy the requirements of Rule 23(a)(4).").
ORDER
IT IS HEREBY ORDERED that Coleman's request for class certification, ECF
No. 118-11 at ,r 79, is DENIED without prejudice; and it is further
ORDERED that the Clerk of Court shall sever and transfer the claims arising
from Coleman's confinement at Clinton and Midstate to the Northern District of New
York. The severance and transfer shall include Defendants E. Castine, J. Friend, K.
Guynup, Wrag Laporte, C. Lawfler, Adam Lord, Justin Mahan, J. Mullady, Zachary
Buckley, Michael Moran, J. Newphew, N. Johnston, Brian Poupore, D. Bombardier,
Austin 	Newell, 	Jim Vann, 	Stacey Manor, 	Torrin 	Fitten, 	C.O. 	Lamay, 	Andrew
Cymbrak, C. Gadway, Matthew Liberty, D. Mason, Terry Allen, Lt. Guynup, Earl
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Bell, David Duquette, Kevin Santo, Gregory King, Chad Rodier, C.H.O. Liberty, John
Doe## 4, 7-10, Mark Passage, and Brian Hilton, Annucci, Martuscello, the Governor
(Kathy 	Hochul), 	Noeth, 	and 	McGrath. 	Defendants 	Annucci, 	Martuscello, 	the
Governor, Noeth, McGrath, and John Doe ##8-10 remain Defendants in this District
from their conduct arising here; and it is further
ORDERED that the following claims, which arise from Coleman's confinement
in this District may proceed to service:
■ 	First 	Amendment 	retaliation 	claim 	against 	Tomporowski 	for 	the
retaliatory misbehavior report that resulted in an April 1, 2024 finding of guilt at a
disciplinary hearing;
■ 	First Amendment free exercise of religion claim against Ebert;
■ 	Eighth Amendment claim against Annucci arising from violations of the
HALT Act in connection with Coleman's SHU confinement that began on August 10,
2022 at Attica;
■ 	Eighth 	Amendment 	conditions 	of confinement 	claims 	against: 	(1)
Tomporowski 	arising 	from 	Coleman's 	SHU 	confinement 	from 	August 	through
September 2022; (2) Wolcott arising from the discharge of waste in April and May of
2024; (3) Annucci, Martuscello, Wolcott, Noeth, and John Doe Supervisor of Five
Points arising from the alleged deprivation of out-of-cell activities and basic needs in
contravention to the HALT Act while he was confined to the RRU; (4) Raczkowski,
Tomporowski, Ford, Wolcott, and Cornmiller for deliberately utilizing a cell shield
and housing Coleman in a cell with a moldy ceiling while in the RRU; (5) Martuscello
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for implementing a deprivation order in the RRU that prevented the use of electricity
in the cells; and, (6) Ford, John Doe #3, Ebert, Fitshans, and Cornmiller for the
conditions of confinement that Coleman experienced from the start of the DOCCS's
strike that began on February 28, 2025 until he was transferred from Attica to
Midstate on April 16, 2025;
■ 	Eighth Amendment sexual assault claim against Frederickson;
■ 	Eighth Amendment deliberate indifference claim against John Doe #3
and Wolcott concerning Coleman's hunger strike;
■ 	Eighth Amendment claims arising from the November 22, 2024 strip
frisks by Cornmiller, Fitshans, and John Doe #3; and
■ 	Fourteenth Amendment Due process claim again Tomporowski and
Littlejohn arising from April 1, 2024 disciplinary hearing; and it is further
ORDERED that Coleman's remaining First Amendment retaliation claims,
First Amendment access to court's claims, Fourth Amendment privacy claims, Eighth
Amendment inadequate nutrition claims, remaining Eighth Amendment strip frisk
claims, and Fourteenth Amendment Equal Protection claims are dismissed with
prejudice; and it is further
ORDERED 	that 	Coleman's 	claims 	against DOCCS, 	the 	New York 	State
Department of Mental Health, New York State Attorney General's Office, and New
York State Governor's Office, as well as his claims against the individual defendants
in their official capacity for monetary damages are dismissed without prejudice; and
it is further
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ORDERED that Coleman's First Amendment free exercise of religion claim
arising from the strip frisks; Eighth Amendment claims arising from the use of
restraints, excessive force, the alleged April 7, 2024 sexual assault, and deliberate
indifference arising from being given the wrong medication on August 14, 2024; and,
claims pursuant to 	42 	U.S.C. 	§§ 	1985 and 	1986, 	and claims 	arising from 	his
confinement at Green Haven are dismissed without prejudice; and it is further
ORDERED that pursuant to Valentin v. Dinkins, the Court requests that the
New York State Attorney General's Office ascertain the full name and last known
address for Ebert, John Doe Supervisor of Five Points, Raczkowski, Ford, Cornmiller,
John Doe #3, Fitshans, and Littlejohn and the last known address of Martuscello,
Wolcott, 	Frederickson, 	and 	Noeth. 18 	The 	Attorney 	General's 	Office 	need 	not
undertake to defend or indemnify the defendant at this juncture. This order merely
provides a means by which Coleman may name and properly serve them as instructed
by the Second Circuit in Valentin.
The Attorney General's Office shall produce the information specified above
within thirty days of the date of this Order by mail to the Pro Se Litigation Unit,
United States District Court, 2 Niagara Square, Buffalo, NY 14202; and it is further
ORDERED that upon receipt of the Valentin response, the Clerk of Court is
directed to cause the United States Marshals Service to serve copies of the summons,
second amended complaint (ECF No. 118-11) and this Order upon Tomporowski,
18 The Attorney General's Office has already provided service addresses for Tomporowski and Annucci.
ECF No.114.
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Annucci, Ebert, Martuscello, Wolcott, Noeth, John Doe Supervisor of Five Points,
Raczkowski, Ford, Cornmiller, Frederickson, John Doe #3, Fitchans, and Littlejohn
without Coleman's payment therefore, unpaid fees to be recoverable if this action
terminates by monetary award in Coleman's favor; and it is further
ORDERED that the Clerk of Court shall terminate the remaining defendants;
and it is further
ORDERED that upon receipt of the summons and second amended complaint,
Tomporowski, Annucci, Ebert, Martuscello, Wolcott, Noeth, John Doe Supervisor of
Five Points, Raczkowski, Ford, Cornmiller, Frederickson, John Doe #3, Fitshans, and
Littlejohn shall answer or otherwise respond; and it is further
ORDERED that the Clerk of Court is directed to send a copy of the second
amended complaint, with exhibits, ECF No. 118, and this Order to Ted O'Brien,
Assistant Attorney General 1n Charge, Rochester Regional Office, at
Ted.O'Brien@ag.ny.gov, and he is directed to provide the Valentin information
directed above; and it is further
ORDERED that, pursuant to Western District of New York Local Rule of Civil
Procedure 5.2(d), Coleman must notify the Court in writing if his address changes.
Failure to do so may result in dismissal of the action with prejudice.
SO ORDERED.
Date: January�, 2026
Rochester, New York
52
HON. MEREDITH A. VACCA
UNITED STATES DISTRICT JUDGE
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