Bennett v. Akshar et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
DELOVE R. BENNETT,
Plaintiff,
9:25-CV-1173
v. 	(GTS/ML)
SHAEEZA BIBI KAHN, Health Service
Administrator; DR. AHMED BUTT;
SCOTTLAND RIDER, Physicians
Assistant; and BROOME COUNTY,
Defendants.
____________________________________________
APPEARANCES: 	OF COUNSEL:
DeLove R. Bennett
Pro Se Plaintiff
Wyoming Correctional Facility
Post Office Box 501
Attica, New York 14011
BARCLAY DAMON, LLP 	PAUL A. SANDERS, ESQ.
Counsel for Defendants Kahn, Butt, and Rider 	RADHIKA SHUKLA, ESQ.
2000 Five Star Bank Plaza
100 Chestnut Street
Rochester, New York 14606-2072
CHERYL SULLIVAN 	JOSHUA TERRELL, ESQ.
Broome County Attorney 	Assistant County Attorney
Counsel for Defendant Broome County
Broome County Office Building
60 Hawley Street
Post Office Box 1766
Binghamton, New York 13902-1766
MIROSLAV LOVRIC, United States Magistrate Judge
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 1 of 151

2
REPORT and RECOMMENDATION
Currently before the Court, in this civil rights action filed by DeLove Bennett
(“Plaintiff”) against defendants Shaeeza Bibi Kahn, Dr. Ahmed Butt, Scottland Rider, and
Broome County (collectively “Defendants”), are (1) a motion to dismiss filed by Defendant
Broome County pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6), and (2) a
motion to dismiss filed by Defendants Kahn, Butt, and Rider (collectively “Named Defendants”)
pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. Nos. 8, 17.) For the reasons set forth below, I
recommend that Defendant Broome County’s motion be denied and Named Defendants’ motion
be granted.
I. 	RELEVANT BACKGROUND
A. 	Plaintiff’s Claims
In a Decision and Order dated October 1, 2025, United States District Judge Glenn T.
Suddaby thoroughly outlined the factual allegations contained in Plaintiff’s Complaint. (Dkt.
No. 4 at 5-7.) At this procedural posture, Plaintiff asserts the following two claims: (1) a claim
of medical indifference against Named Defendants, and (2) claims pursuant to Title II of the
American with Disabilities Act (“ADA”) and Rehabilitation Act (“RA”) against Defendant
Broome County related to alleged wrongdoing in Plaintiff’s housing assignment. (See generally
Dkt. Nos. 4, 1.)
B. 	Briefing on Defendants’ Motions to Dismiss
1. 	Defendant Broome County’s Motion to Dismiss
Generally, in support of its motion to dismiss, Defendant Broome County asserts the
following four arguments: (1) Plaintiff’s Complaint should be dismissed pursuant to Fed. R. Civ.
P. 12(b)(1) because the claim is moot; (2) Plaintiff’s Complaint fails to state a claim upon which
relief may be granted; (3) Plaintiff failed to exhaust his administrative remedies under the
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 2 of 151

3
grievance process; and (4) Plaintiff’s Monell claim against Defendant Broome County must be
dismissed. (See generally Dkt. No. 8, Attach. 3.)
More specifically, with respect to its first argument, Defendant Broome County asserts
that Plaintiff was provided an accommodation for his disability—namely, a housing placement
that was ADA compliant.1 (Dkt. No. 8, Attach. 3 at 9-11.) Defendant Broome County argues
that Plaintiff was transferred out of the Broome County Correctional Facility (“BCCF”) on April
22, 2025, approximately four months before he commenced this action and there is no reasonable
expectation that the alleged violation will recur. (Id.) Defendant Broome County argues that
Plaintiff’s claims are moot and thus, the Court lacks subject matter jurisdiction over the action.
(Id.)
With respect to its second argument, Defendant Broome County argues that Plaintiff fails
to state a claim upon which relief may be granted because he does not assert that he did not
receive evenhanded treatment. (Dkt. No. 8, Attach. 3 at 11-12.) Defendant Broome County
argues that Plaintiff does not allege that he made an accommodation request that was not granted
or that he was discriminated against due to his disability. (Id.)
With respect to its third argument, Defendant Broome County argues that Plaintiff failed
to file a grievance or any written request regarding the issues raised in the Complaint and thus,
failed to exhaust his available administrative remedies as required under the Prison Litigation
Reform Act of 1995. (Dkt. No. 8, Attach. 3 at 12-14.)
1 	Defendant Broome County also asserts that Plaintiff was provided access to his
prosthetic, a wheelchair accessible cell, and a wheelchair accessible housing unit. (Dkt. No. 8,
Attach. 3 at 9 [citing a “Hakeem Declaration” that was not included in Defendant Broome
County’s moving papers].)
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 3 of 151

4
With respect to its fourth argument, Defendant Broome County argues that the Complaint
fails to allege that there was a policy in place or endorsed by it that violated Plaintiff’s
protections under the Fourteenth Amendment, the ADA, or the Rehabilitation Act. (Dkt. No. 8,
Attach. 3 at 14-17.) Moreover, Defendant Broome County argues that a singular incident is
insufficient to support a Monell claim and the Complaint fails to allege any other comparable
instances upon which a custom, policy, or practice could be inferred. (Id.)
2. 	Named Defendants’ Motion to Dismiss
Generally, in support of their motion to dismiss, Named Defendants assert that the
Complaint fails to allege a cognizable deliberate indifference claim pursuant to 42 U.S.C. §
1983.2 (See generally Dkt. No. 17, Attach. 1.) More specifically, Named Defendants argue that
the Complaint fails to allege their personal involvement in the alleged violation of Plaintiff’s
constitutional rights. (Id. at 2, 7.) Moreover, Named Defendants argue that the Complaint fails
to allege subjective indifference because (1) Plaintiff acknowledges that instead of Ozempic, his
diabetes was treated with three insulin injections per day which is merely a disagreement in
treatment, (2) with respect to Lastarin,3 Plaintiff merely alleges a dosage error but failed to
plausibly allege serious resulting harm and deliberate disregard by medical providers. (Id. at 7-
9.) In addition, Named Defendants argue that the Complaint fails to allege an underlying
medical condition associated with Lastarin. (Id.) Further, Named Defendants argue that Plaintiff
does not allege an objective serious medical need that amounts to a condition of urgency that
2 	Counsel for Named Defendants are cautioned that in the future, motions must comply
with N.D.N.Y. L.R. 7.1(b)(1) which requires—among other things—that memorandum of law
include a table of contents and numbered pages.
3 	Named Defendants asserted that this is not a recognized medication name.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 4 of 151

5
may produce death, degeneration or extreme pain, as required to state a constitutional claim
because Plaintiff received daily treatment and management of his diabetes condition. (Id. at 9.)
3. 	Plaintiff’s Response in Opposition to Defendant Broome County’s
Motion to Dismiss
Generally, in opposition to Defendant Broome County’s motion to dismiss, Plaintiff
asserts the following four arguments: (1) Plaintiff’s claim against Defendant Broome County is
not moot and thus should not be dismissed pursuant to Fed. R. Civ. P. 12(b)(1); (2) Plaintiff
adequately alleged that Defendant Broome County was aware of Plaintiff’s medical conditions
and disregarded an excessive risk to Plaintiff’s health and safety; (3) Plaintiff’s disability
prevented him from properly accessing the grievance process; and (4) Plaintiff’s Monell claim
must prevail. (See generally Dkt. No. 29, Attach. 1.)
More specifically, with respect to his first argument, Plaintiff asserts that Defendant
Broome County failed to attach a “Hakeem Declaration” to the Terrell Declaration and thus,
Plaintiff is “denied the opportunity to challenge this declaration and claim made by” Defendant
Broome County. (Dkt. No. 29, Attach. 1 at 5.) Moreover, Plaintiff asserts that he seeks nominal
damages as redress for the injury caused by Defendant Broome County and thus, his claims
against it are not moot. (Id. at 5-6.)
With respect to his second argument, Plaintiff asserts that after an emergency trip to the
hospital, Plaintiff returned to the BCCF, Defendant Broome County disregarded the hospital
specialist’s orders, and continued to give Losartan, which resulted in an acute kidney injury and
a second trip to the emergency room. (Id. at 7.)
With respect to his third argument, Plaintiff asserts that he did not have access to the
grievance process because there is no law library clerk (only an officer) and he cannot use his
hands to type or write. (Dkt. No. 29, Attach. 1 at 8.) Plaintiff asserts that Defendant Broome
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 5 of 151

6
County does not have an official form, policy, or procedure for incarcerated individuals to utilize
or obtain necessary reasonable accommodations. (Id. at 8-9.) Further, Plaintiff argues that
grievance forms are only available upon request and officers decide who may file a grievance
and on what issue the grievance may be filed upon. (Id. at 9.) Plaintiff asserts that Defendant
Broome County will not accept a grievance written on a plain sheet of paper. (Id.)
With respect to his fourth argument, Plaintiff argues that Defendant Broome County
violated his First Amendment rights with its procedure that requires incarcerated individuals to
request grievance forms from a corrections officer who then decides what issues incarcerated
individuals may grieve. (Dkt. No. 29, Attach. 1 at 9-10.) Plaintiff also argues that he witnessed
officers document in logbooks “about the conditions complained of” but that no further action
was taken to correct the conditions. (Id. at 10.)
4. 	Plaintiff’s Response in Opposition to Named Defendants’ Motion to
Dismiss
Generally, in opposition to Named Defendants’ motion to dismiss, Plaintiff asserts the
following three arguments: (1) Plaintiff argues that Named Defendants improperly cite to New
York Civil Practice Law and Rules and New York State Court cases in support of their
arguments but that Federal law is applicable in Federal Court and therefore, Named Defendants’
motion is not cognizable; (2) Named Defendants assert that Plaintiff’s claims against Defendant
Khouri must be dismissed but Plaintiff does not assert any claims against an individual named
Khouri; and (3) Named Defendants “harp on a scrivener’s error regarding the name of the
medication” that Plaintiff was prescribed instead of merely looking “in a medication dictionary”
and identifying the clerical error. (See generally Dkt. No. 30, Attach. 1.)
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 6 of 151

7
5. 	Defendant Broome County’s Reply in Further Support of Its Motion
to Dismiss
Generally, in further support of its motion to dismiss, Defendant Broome County asserts
the following four arguments: (1) the Complaint should be dismissed pursuant to Fed. R. Civ. P.
12(b)(1) because the claim is moot since Plaintiff is no longer housed in BCCF; (2) Plaintiff’s
Complaint fails to state a claim upon which relief may be granted because it does not allege that
Plaintiff did not receive evenhanded treatment; (3) Plaintiff failed to exhaust his administrative
remedies under the grievance process; and (4) the Monell claim against Defendant Broome
County must be dismissed because Plaintiff fails to allege that any custom, policy, or practice
violated his constitutional rights. (See generally Dkt. No. 35, Attach. 1.)
With respect to its second argument, Defendant Broome County argues that Plaintiff also
failed to allege facts plausibly suggesting a claim of deliberate indifference to serious medical
needs pursuant to the Eighth Amendment and 42 U.S.C. § 1983. (Dkt. No. 35, Attach. 1 at 11-
12.)
With respect to its third argument, Defendant Broome County argues that Plaintiff’s
assertion that his disability prevented him from exhausting his available administrative remedies
is contradicted by Plaintiff’s filing of eleven grievance request forms during the approximately
ten months that he was incarcerated at BCCF. (Dkt. No. 35, Attach. 1 at 12.) In addition,
Defendant Broome County asserts that Plaintiff filed two federal lawsuits that complained of acts
or omissions that were unrelated to his grievance request forms. (Dkt. No. 35, Attach. 1 at 12.)
Moreover, Defendant Broome County argues that Plaintiff failed to make a showing that
administrative remedies were unavailable to him. (Id. at 12-13.)
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 7 of 151

8
6. 	Named Defendants’ Reply in Further Support of Their Motion to
Dismiss
Generally, in further support of their motion to dismiss, Named Defendants assert that the
Complaint fails to allege a cognizable deliberate indifference claim. (See generally Dkt. No. 36.)
Named Defendants argue that neither the Complaint nor Plaintiff’s opposition mention Named
Defendants or allege their specific conduct that was deliberately indifferent to Plaintiff’s serious
medical needs. (Id. at 3.) Moreover, Named Defendants argue that Plaintiff concedes that he
received treatment for diabetes and alleges, at most, a disagreement in treatment without any
resultant injury. (Id.) Named Defendants argue that with respect to Plaintiff’s allegations
concerning “Lastarin,” Plaintiff merely asserts an error in dosage without identifying what
medication was intended, the quantity of the incorrect dosage, who prescribed or administered it,
or any injury that resulted from the purported error. (Id.)
7. 	Plaintiff’s Sur-reply in Further Opposition to Defendant Broome
County’s Motion to Dismiss
Plaintiff argues that although he filed another federal lawsuit, it was only possible
because he had assistance from a law clerk. (Dkt. No. 40.) Plaintiff also attached medical
records that appear to reflect two visits to UHS Wilson Medical Center from May 29, 2024, to
June 3, 2024; and June 15, 2024, to June 18, 2024. (Dkt. No. 40 at 9-10.)
II. 	GOVERNING LEGAL STANDARDS
A. 	Legal Standard Governing Motions to Dismiss for Lack of Subject Matter
Jurisdiction
“Determining the existence of subject matter jurisdiction is a threshold inquiry[,] and a
claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the
district court lacks the statutory or constitutional power to adjudicate it.” Morrison v. Nat'l
Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd, 561 U.S. 247 (2010) (internal
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 8 of 151

9
quotation marks and citation omitted). “In resolving a motion to dismiss under Rule 12(b)(1),
the district court must take all uncontroverted facts in the complaint . . . as true, and draw all
reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain's Cove
Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (citing Amidax Trading Grp. v.
S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011) (per curiam)). However, “[w]here
jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues
of fact by reference to evidence outside the pleadings, such as affidavits.” APWU v. Potter, 343
F.3d 619, 627 (2d Cir. 2003) (internal quotation marks and citations omitted).
B. 	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
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 9 of 151

10
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).4
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),
4 	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.).
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 10 of 151

11
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.
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,
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 11 of 151

12
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,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 12 of 151

13
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.5
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 submitted in opposition to defendants’ motion to dismiss, Gill asserts that Mooney’s
5 	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).
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 13 of 151

14
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 Defendant Broome County’s
motion to dismiss be denied and Named Defendants’ motion to dismiss be granted.
A. 	Defendant Broome County’s Motion to Dismiss
1. 	Mootness6
Mootness is “a threshold matter” that must be addressed before proceeding to the merits.
Rodriguez v. Barr, 943 F.3d 134, 141 (2d Cir. 2019).
Federal court jurisdiction is limited to “‘actual cases or controversies.’” Raines v. Byrd,
521 U.S. 811, 818 (1997) (quoting Simon v. E. Kentucky Welfare Rts. Org., 426 U.S. 26, 37
(1976)). “To state a case or controversy under Article III, a plaintiff must establish standing.”
Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 133 (2011). The “‘irreducible
constitutional minimum’ of standing consists of three elements. The plaintiff must have (1)
6 	At various points Defendant Broome County’s moving papers incorrectly cite to “CPLR
12(b)(1)” as the legal basis for dismissal for lack of subject matter jurisdiction. (Dkt. No. 8,
Attach. 3 at 3, 6; Dkt. No. 35, Attach. 1 at 3.)
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 14 of 151

15
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins,
578 U.S. 330, 338 (2016) (internal citation omitted) (quoting Lujan v. Defs. of Wildlife, 504 U.S.
555, 560 (1992)).
The undersigned rejects Defendant Broome County’s assertion that Plaintiff’s transfer out
of BCCF before the commencement of this action renders moot his claims pursuant to the ADA
and RA. (Dkt. No. 8, Attach. 3 at 9-11; Dkt. No. 35, Attach. 1 at 8-10.)
Plaintiff argues that dismissal of his claims is not warranted because he seeks nominal
damages. (Dkt. No. 29, Attach. 1 at 6.) Although the Complaint appears to only list
compensatory damages as relief sought, Plaintiff’s “failure to specifically request nominal
damages in the complaint is not determinative.” Matagrano v. N.Y. State Dep’t of Corr. & Cmty.
Supervision, 19-CV-0763, 2023 WL 5932943, at *7 (N.D.N.Y. Sept. 12, 2023) (Sannes, C.J.)
(citing Fantasia v. Montefiore New Rochelle, 19-CV-11054, 2022 WL 20540940, at *5
(S.D.N.Y. June 16, 2022) (noting that a plaintiff “may seek nominal damages at trial even if she
did not explicitly request nominal damages in her complaint”) (citations omitted)). Moreover,
Plaintiff’s opposition to the motion to dismiss makes clear that he is seeking nominal damages.
(Dkt. No. 29, Attach. 1 at 5-6); Drake, 147 F.3d at 170, n. 1 (deeming the plaintiff’s complaint to
include the facts contained in his opposition memorandum of law); Gill, 824 F.2d at 195
(liberally construing the plaintiff’s opposition to amend the complaint). “At least some district
courts have concluded that nominal damages are available under the Rehabilitation Act and
ADA.” Matagrano, 2023 WL 5932943, at *7 (collecting cases).
“Thus, because it is not clear that there is no relief to which Plaintiff may be entitled
should he prevail on his Rehabilitation Act and ADA claims, the [undersigned recommends]
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 15 of 151

16
deni[al of] Defendant [Broome County’s] motion” to dismiss. Matagrano, 2023 WL 5932943, at
*8.
2. 	Failure to State a Claim
As stated by Judge Suddaby in his Decision and Order dated October 1, 2025, the court
may treat Plaintiff’s claims under the ADA and RA identically. (Dkt. No. 4 at 20 (citing Wright
v. New York State Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016)). “In order to establish a prima
facie violation under these acts, [an incarcerated individual] must show that 1) he is a qualified
individual with a disability; 2) [the agency] is an entity subject to the acts; and 3) he was denied
the opportunity to participate in or benefit from [the agency’s] services, programs, or activities or
. . . otherwise discriminated against . . . by reason of his disability.” Wright, 831 F.3d at 72
(citing Henrietta D., 331 F.3d at 272). There are “three available theories” of discrimination that
can be used to establish the third prong of an ADA and RA claim: “(1) intentional discrimination
(disparate treatment); (2) disparate impact; and (3) failure to make a reasonable
accommodation.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009).
Defendant Broome County does not meet its burden of showing that Plaintiff has failed to
state a claim under the ADA and RA. First, Defendant Broome County argues that Plaintiff fails
to allege that he was subjected to unfair treatment. (Dkt. No. 8, Attach. 3 at 11-12 [arguing that
Plaintiff does not allege that he experienced treatment that was not evenhanded].) Contrary to
Defendant Broome County’s assertion, however, Plaintiff alleges that he was assigned to an
unfavorable housing unit because of his disability. (Dkt. No. 1 at 6-7.) Hence, although “Courts
‘routinely dismiss ADA suits [brought] by disabled inmates that . . . do not allege that the inmate
was treated differently because of his or her disability,’” Benyi v. New York, 20-CV-1463, 2021
WL 1406649, at *13 (N.D.N.Y. Mar. 23, 2021) (Lovric, M.J.) (quoting Elbert v. N.Y.S. Dep't of
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 16 of 151

17
Corr. Servs., 751 F. Supp.2d 590, 595 (S.D.N.Y. 2010)), Plaintiff alleges that he was treated
differently because of his disability.
Second, Defendant Broome County argues that Plaintiff failed to make a “request for
other accommodations.” (Dkt. No. 8, Attach. 3 at 12.) However, as set forth above, there are
three available theories of discrimination for purposes of alleging an ADA and RA claim, only
one of which involves the request of reasonable accommodations. Fulton, 591 F.3d at 43.
Indeed, the Complaint appears to allege that Plaintiff experienced intentional discrimination
(disparate treatment) whereby incarcerated individuals in wheelchairs at BCCF must be housed
in G-pod or the medical unit, which are less desirable housing assignments. (Dkt. No. 1 at 6-7.)
As a result, I recommend denial of Defendant Broome County’s motion to dismiss for
failure to state a claim upon which relief may be granted.7
3. 	Failure to Exhaust Available Administrative Remedies
In support of its motion to dismiss, Defendant Broome County proffered documents not
contained in the pleadings—principally documents related to its argument that Plaintiff has not
exhausted his available administrative remedies. (See Dkt. No. 8, Attach. 3 at 13-14 [citing Dkt.
No. 8, Attach. 4 (Charpinsky Declaration); Dkt. No. 8, Attach. 5 (Inmate Request Forms)].)
Where materials outside the pleadings are presented on a motion to dismiss under Rule 12(b)(6),
a court “must either exclude the additional material and decide the motion on the complaint
alone or convert the motion to one for summary judgment under Fed. R. Civ. P. 56 and afford all
7 	The undersigned notes that Defendant Broome County’s reply memorandum of law
focused on the legal standards governing a deliberate medical indifference claim. (Dkt. No. 35,
Attach. 1 at 10-12.) However, pursuant to Judge Suddaby’s Decision and Order dated October 1,
2025, the only claims that survived sua sponte review against Defendant Broome County were
discrimination claims pursuant to RA and Title II of the ADA. (Dkt. No. 4 at 20-23.)
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 17 of 151

18
parties the opportunity to present supporting material.” Friedl v. City of New York, 210 F.3d 79,
83 (2d Cir. 2000) (citations and internal quotation marks omitted).
Here, because Plaintiff has not had an opportunity for discovery and Defendant Broome
County has not made clear that it is requesting conversion of its motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6) to a motion for summary judgment pursuant to Fed. R. Civ. P. 56, I
decline to consider any materials outside the pleadings. Based solely on a review of the
Complaint, it is not clear whether Plaintiff failed to exhaust available administrative remedies.
See, e.g., Young v. Carter, 21-CV-8973, 2023 WL 2430408, at *3 (S.D.N.Y. Mar. 9, 2023)
(“Because it is clear from the face of the plaintiff’s complaint that [he] has failed to exhaust his
available administrative remedies, the motion to dismiss is granted.”); Massey v. City of New
York, 20-CV-5665, 2021 WL 4943564, at *9-10 (S.D.N.Y. Aug. 30, 2021) (granting the
defendants’ motion to dismiss pursuant to Fed. R. Civ. P 12(b)(6) for failure to exhaust available
administrative remedies where “it [wa]s plain from the face of Plaintiff’s Complaint (and his
accompanying pro se submissions) that, with respect to his claim in this case, he did not exhaust
his administrative remedies in accordance with the PLRA.”); Hunter v. Rouse, 20-CV-0065,
2020 WL 8474744, at *3 (N.D.N.Y. Sept. 17, 2020) (Stewart, M.J.) (“Plaintiff concedes in his
Complaint that there is a grievance procedure in place at Coxsackie C.F., but that he did not file
a grievance.”).
As a result, I recommend that Defendant Broome County’s motion to dismiss for failure
to exhaust administrative remedies be denied.8
8 	This conclusion does not preclude Defendant Broome County from raising this argument
on summary judgment pursuant to Fed. R. Civ. P. 56. Defendant Broome County is cautioned
that a motion for summary judgment must comply with all N.D.N.Y. Local Rules including 7.1
and 56.1.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 18 of 151

19
4. 	Monell Claim
Defendant Broome County argues that Plaintiff fails to plausibly suggest a claim pursuant
to Monell. (Dkt. No. 8, Attach. 3 at 14-17.) In so arguing, Defendant Broome County asserts
that “[t]o maintain a 42 U.S.C. § 1983 action against a municipal Defendant, a plaintiff must
identify a municipal ‘policy or custom’ from which the alleged injury arose.” (Dkt. No. 8,
Attach. 3 at 14 [citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)].)
The Decision and Order of Judge Suddaby dated October 1, 2025, made clear that
Plaintiff’s claims pursuant to 42 U.S.C. § 1983 and Monell v. Dep’t of Soc. Servs. of City of New
York, 436 U.S. 658 (1978) against Defendant Broome County were dismissed. (Dkt. No. 4 at 10-
18.) Hence the only remaining claims against Defendant Broome County are pursuant to the
ADA and RA.
As a result, I recommend that Defendant Broome County’s motion to dismiss Plaintiff’s
claims pursuant to Monell be denied as moot.
B. 	Named Defendants’ Motion to Dismiss9
After carefully considering the matter, I recommend that Named Defendants’ motion to
dismiss be granted for the reasons stated in their memoranda of law. (Dkt. No. 17, Attach. 1;
Dkt. No. 36.) The following is intended to supplement—not supplant—those reasons.
As set forth in Judge Suddaby’s Decision and Order dated October 1, 2025,
“In order to establish an Eighth Amendment claim arising out of
inadequate medical care, a prisoner must prove “deliberate indifference to
[his] serious medical needs.’” Chance v. Armstrong, 143 F.3d 698, 702
(2d Cir. 1998) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
“First, the alleged deprivation must be, in objective terms, sufficiently
serious.” Chance, 143 F.3d at 702 (internal quotation marks and citations
9 	Named Defendants incorrectly cite to “CPLR § 3211(a)(7)” as the legal standard for
consideration of a motion to dismiss. (Dkt. No. 17, Attach. 1 at 3-4.)
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 19 of 151

20
omitted). Addressing the objective element, to prevail a plaintiff must
demonstrate a violation sufficiently serious by objective terms, “in the
sense that a condition of urgency, one that may produce death,
degeneration, or extreme pain exists.” Hathaway v. Coughlin, 99 F.3d
550, 553 (2d Cir. 1996). To determine whether inadequate care is
“sufficiently serious,” a court must “examine how the offending conduct is
inadequate and what harm, if any, the inadequacy has caused or will likely
cause the prisoner.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir.
2006). “Where a plaintiff alleges that inadequate care was provided—
instead of alleging a failure to provide any treatment—the inquiry focuses
on ‘the particular risk of harm faced by a prisoner due to the challenged
deprivation of care, rather than the severity of the prisoner’s underlying
medical condition, considered in the abstract.’” Revels v. Corr. Med.
Care, Inc., 17-CV-0088, 2018 WL 1578157, at *4 (N.D.N.Y. Mar. 28,
2018) (quoting Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003)); see
also Ray v. Zamilus, 13-CV-2201, 2017 WL 4329722, *8 (S.D.N.Y. Sept.
27, 2017) (finding that where a “plaintiff suffered from a delay in
treatment, rather than a complete lack of treatment, the objective element
must be satisfied by harm that resulted from the delay”).
“Second, the defendant must act with a sufficiently culpable state of
mind,” Chance, 143 F.3d at 702 (internal quotation marks and citations
omitted); that is, the plaintiff must demonstrate that the defendant “kn[ew]
of and disregard[ed] an excessive risk to inmate health or safety.” Farmer,
511 U.S. at 837; see also Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.
1999) (With respect to the subjective element, a plaintiff must also
demonstrate that defendant had “the necessary level of culpability, shown
by actions characterized by ‘wantonness.’”).
(Dkt. No. 4 at 15-16.)
First, as Named Defendants argue, the Complaint fails to allege facts plausibly suggesting
their personal involvement in any constitutional violation. (Dkt. N. 17, Attach. 1 at 7.) The
Complaint lists Named Defendants in the caption and in the list of defendants, but the body of
the Complaint does not allege any action or inaction attributable to them. (See generally Dkt. No.
1.) 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)). Thus, the Complaint fails to state a cognizable claim against
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 20 of 151

21
Named Defendants. See, e.g., Cipriani v. Buffardi, 06-CV-0889, 2007 WL 607341, at *1
(N.D.N.Y. Feb. 20, 2007) (Kahn, J.) (citation omitted) (“A complaint cannot be maintained
against a defendant who is listed in the caption, but against whom no facts are alleged in the
body of the complaint.”).
Second, the Complaint fails to allege facts plausibly suggesting that Named Defendants
were deliberately indifferent to Plaintiff’s medical needs.
With respect to Plaintiff’s diabetic care, the Complaint alleges that Plaintiff was
prescribed Ozempic by his primary care physician but that while incarcerated at BCCF, he was
instead treated with three insulin injections per day. (Dkt. No. 1 at 4, 6.) While Plaintiff may
disagree with the approach to treatment, “[d]isagreements over medications, diagnostic
techniques . . . , forms of treatment, or the need for specialists or the timing of their intervention,
are not adequate grounds for a Section 1983 claim.” Sonds v. St. Barnabas Hosp. Corr. Health
Servs., 151 F. Supp. 2d 303, 312 (S.D.N.Y. 2001); see also Rodriguez v. Westchester Cnty., 23-
CV-5265, 2024 WL 4390222, at *2 (S.D.N.Y. Oct. 3, 2024) (“Plaintiff's own complaint indicates
that he received treatment—the issue was that Plaintiff just disagreed as to the treatment received
and the location where treatment was administered . . . [which] does not constitute deliberate
indifference and/or negligent medical treatment.”); Bernel v. Korobkova, 21-CV-5106, 2023 WL
6146600, at *7 (S.D.N.Y. Sept. 19, 2023) (“It is well-established that mere disagreement over
the proper treatment does not create a constitutional claim.”); Veloz v. New York, 339 F. Supp. 2d
505, 525 (S.D.N.Y. 2004) (The Eighth Amendment is not implicated by prisoners’ complaints
over the adequacy of the care they received when those claims amount to a disagreement over
the appropriateness of a particular prescription plan.”), aff'd, 178 F. App’x 39 (2d Cir. 2006).
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 21 of 151

22
Moreover, with respect to Plaintiff’s allegations concerning the medication “Lastarin,” he
merely asserts an error in dosage. However, as Named Defendants set forth, “[a] medication
error alone, as to either the type or dose of medication, is not deliberate indifference. It is, at
most, medical malpractice, which is not actionable under § 1983.” Duva v. Riverhead Corr. Fac.
Med. Dep’t, 19-CV-1429, 2019 WL 5537250, at *2 (E.D.N.Y. Oct. 25, 2019) (quoting Pyle v.
Robin Sims, 15-CV-5245, 2017 WL 663518, at *6 (W.D. Ark. Jan. 30, 2017) (collecting cases),
report and recommendation adopted, 2017 WL 662991 (W.D. Ark. Feb. 17, 2017)); see Musaid
v. Donner, 23-CV-0257, 2024 WL 3083325, at *4 (N.D.N.Y. June 21, 2024) (Sannes, C.J.)
(dismissing the plaintiff’s Eighth Amendment deliberate medical indifference claim where the
plaintiff alleged that the Medical Doctor administered 100 mg of a “medical shot” when plaintiff
was prescribed 50 mg).
For each of these reasons, I recommend that Named Defendants’ motion to dismiss be
granted because the Complaint fails to state a claim for deliberate medical indifference against
them.
ACCORDINGLY, it is respectfully
RECOMMENDED that Defendant Broome County’s motion to dismiss (Dkt. No. 8) be
DENIED; and it is further respectfully
RECOMMENDED that Named Defendants’ motion to dismiss for failure to state a
claim upon which relief may be granted (Dkt. No. 17) be GRANTED; and it is further
respectfully
RECOMMENDED that Defendants Kahn, Butt, and Rider be terminated from this
action; and it is further
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 22 of 151

23
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.10
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.11 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: May __, 2026
Binghamton, New York
10 	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).
11 	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).
14
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 23 of 151

Benyi v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 1406649
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
John J. BENYI, Plaintiff,
v.
NEW YORK; Binghamton Police Department; Broome
County Sheriff's Department; New York Appellate
Division Third Department; United States District
Court for the Northern District of New York; Second
Circuit Court of Appeals; Detective Sergeant Barry
Angel; and Deputy Sheriff William Guyyey, Defendants.
3:20-CV-1463 (DNH/ML)
|
Signed 03/23/2021
Attorneys and Law Firms
JOHN J. BENYI, Plaintiff, Pro Se, Lea County Correctional
Facility, 6900 West Millen, Hobbs, New Mexico 88244.
ORDER and REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
*1 The Clerk has sent this pro se complaint (Dkt. No. 1)
together with an amended application to proceed in forma
pauperis (Dkt. No. 4) filed by John J. Benyi (“Plaintiff”) to
the Court for review. For the reasons discussed below, I deny
Plaintiff's amended in forma pauperis application (Dkt. No. 4)
without prejudice, and I recommend that Plaintiff's Complaint
(Dkt. No. 1) be dismissed in its entirety, in part (1) without
prejudice and with leave to amend, and (2) with prejudice and
without leave to amend.
I. BACKGROUND
On November 30, 2020, Plaintiff commenced this action
by filing a verified Complaint and a motion to proceed in
forma pauperis. (Dkt. Nos. 1, 2.) On December 1, 2020,
the Court denied Plaintiff's in forma pauperis application as
incomplete and administratively closed the case. (Dkt. No. 3.)
On December 22, 2020, Plaintiff filed an amended in forma
pauperis application. (Dkt. No. 4.) As a result, on January 4,
2021, the case was reopened and restored to the Court's active
docket. (Dkt. No. 5.)
Construed as liberally 1 as possible, the Complaint alleges
that Plaintiff's civil rights were violated by New York State,
the Binghamton Police Department, the Broome County
Sheriff's Department, 2 the New York Appellate Division
Third Department, the United States District Court for the
Northern District of New York, the Second Circuit Court
of Appeals, Detective Sergeant Barry Angel, 3 and Deputy
Sheriff William Guyyey 4 (collectively “Defendants”). (See
generally Dkt. No. 1.) More specifically, Plaintiff alleges that
on April 17, 1987, his rights were violated by Defendant
Angel—an employee of Binghamton Police Department—
who concocted a false confession to non-existent crimes.
(Dkt. No. 1, Attach. 1 at 1.) In addition, Plaintiff alleges that
Inspector Donald Conidin—an employee of the Binghamton
Police Department—removed evidence from his dresser
and that Patrolman William Grace—an employee of the
Binghamton Police Department—stole his swiss army knife,
and, on information and belief, stole his television, stereo, and
audio and video tape collection. (Id.)
Plaintiff alleges that on May 30, 1987, Defendant Angel
and Defendant Guyyey—an employee of Broome County
Sheriff's Department—arranged to have him attacked by Scott
Haven, which resulted in Plaintiff suffering “serious brain
damage, ... numerous surgeries,” and required Plaintiff to take
anti-seizure medications. (Id.)
*2 Plaintiff alleges that “[a]ll [three] of the cops probably
perjured themselves at trial,” though it is unclear which three
police officers Plaintiff is referring to. (Id.) Plaintiff alleges
that he was acquitted of all indicted charges at his criminal
trial but convicted of an unindicted charge “on the say-so of
a proven perjurer[,] [Defendant] Angel.” (Id. at 2.)
Plaintiff alleges that he filed a motion pursuant to N.Y. Crim.
Proc. Law § 440 but that Judge Monseratte “deliberately
ignored the proven perjury and fraud.” (Id.) In addition,
Plaintiff alleges that Defendant New York Appellate Division
Third Department “refused to review the case” three weeks
before the chief justice was arrested by the Federal Bureau of
Investigations. (Id.)
Plaintiff alleges that United States District Judge Hurd of
Defendant United States District Court for the Northern
District of New York, “accepted an unsigned, unnotarized
‘affidavit’ from ADA Lehman ... and used it to dismiss the
case.” 5 (Id.) In addition, Plaintiff alleges that Defendant
Second Circuit Court of Appeals declared Plaintiff's case a
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 24 of 151

Benyi v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
threat to national security and took away Plaintiff's rights.
(Id.)
Plaintiff alleges that Defendants conspired with the New York
Department of Corrections to lose his legal papers when he
was transferred to Arthur Kill Correctional Facility (“Arthur
CF”). (Id.) Plaintiff alleges that “they” 6 had me attacked a
second time at Arthur CF. (Id.)
Plaintiff alleges that “they” provided false information to
officials in New Mexico, which resulted in Plaintiff's arrest,
his house being “invaded” three times, and threats to his wife
unless Plaintiff pleaded guilty. (Id. 3.) Plaintiff alleges that
he was arrested by his probation/parole officer for medical
marijuana but that violation was dismissed. (Id.) Plaintiff
alleges that “they” claimed that “they” found illegal porn on
his computer but that Plaintiff merely searched a file sharing
program for “Playboy” and none of the porn that he viewed
was “labeled in any way that appeared illegal.” (Id.)
Plaintiff alleges that “PPO Megan,” “PPO Kevin,” their
supervisor Pollada, and Douglas and Gladys at La Posada
halfway house conspired to cover up their culpability by
forcing Plaintiff to plead guilty to—what appears to be
a violation of the terms of Plaintiff's probation or parole
—failure to program. (Id. at 4.) Plaintiff alleges that his
failure to program was “their” fault, not his, and that these
individuals threatened to arrest his “innocent caregiver,”
Margaret Malone. (Id.)
*3 The Complaint does not appear to assert any causes
of action. However, attached to the Complaint are excerpts
from a document with information and instructions for filing
a complaint pursuant to 42 U.S.C. § 1983. In addition,
Plaintiff states that he filed an action against the New Mexico
Probation/Parole and La Posada Halfway House alleging
causes of action pursuant to 42 U.S.C. § 1983, 28 U.S.C. §
1997, and the Americans with Disabilities Act (“ADA”). 7
(Dkt. No. 1 at 7.)
For relief, Plaintiff seeks his immediate release to the care
of his United States Department of Veterans Affairs (“V.A.”)
caregiver, Margaret Malone, and his V.A. fiduciary, Dorota
Montour, in California. (Id. at 5.)
Plaintiff also filed an amended application for leave to
proceed in forma pauperis. (Dkt. No. 4.)
II. PLAINTIFF'S AMENDED APPLICATION TO
PROCEED IN FORMA PAUPERIS
“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,
09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26,
2010). 8 “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.”
Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b);
Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
Upon review, the Court finds that Plaintiff has submitted a
completed IFP application which has been certified by an
appropriate official at his facility (Dkt. No. 4), and which
demonstrates economic need. See 28 U.S.C. § 1915(a)(2).
However, Plaintiff has not filed the inmate authorization
required in the Northern District pursuant to Local Rule
5.1.4(b)(1)(B). (See generally docket sheet; see also Dkt. No.
3.) 9
Accordingly, Plaintiff's amended application to proceed with
this action IFP is denied without prejudice.
III. LEGAL STANDARD FOR INITIAL REVIEW OF
COMPLAINT
Ordinarily, the finding that Plaintiff does not qualify for
IFP status would end the Court's discussion, and Plaintiff,
in light of his pro se status, would likely be afforded an
opportunity to either prepay the full filing fee, or submit a
new, completed, and certified application for IFP. Because,
however, as is discussed more completely below, I find that
Plaintiff's Complaint fails to state a claim upon which relief
may be granted, 28 U.S.C. § 1915 requires that the court
dismiss the action “[n]otwithstanding any filing fee, or any
portion thereof, that may have been paid[.]” 28 U.S.C. §
1915(e); see also 28 U.S.C. 1915A(a) (“The court shall
review ... as soon as practicable ... a complaint in a civil action
in which a prisoner seeks redress from a governmental entity
or officer or employee of a governmental entity.”).
*4 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
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 25 of 151

Benyi v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 10
Similarly, under 28 U.S.C. § 1915A, a court 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); see also Carr v.
Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curium) (noting
that Section 1915A applies to all actions brought by prisoners
against governmental officials even when plaintiff paid the
filing fee).
Additionally, when reviewing a complaint, a 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.” Powell v. Marine
Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy,
C.J.) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C.
1977)).
A court should not dismiss a complaint if the plaintiff has
stated “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007), rev'd on other grounds, 682 F. App'x 30. “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.” Ashcroft, 556 U.S. at 678. “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 F.
App'x 102, 104 (2d Cir. 2009).
IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the
court must construe his pleadings liberally. Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having
reviewed Plaintiff's Complaint with this principle in mind, I
recommend that all causes of action be dismissed.
A. Claims Pursuant to 42 U.S.C. § 1983
1. Claims Against Defendants New York and
New York Appellate Division Third Department
After carefully considering the matter, I recommend that
Plaintiff's claims against Defendant New York and New York
Appellate Division Third Department pursuant to 42 U.S.C. §
1983, be dismissed with prejudice because they are immune
from suit.
*5 Defendant New York is immune from suits pursuant to 42
U.S.C. § 1983 seeking either legal or equitable relief, under
the Eleventh Amendment. Papasan v. Allain, 478 U.S. 265,
276 (1986); Pennhurst State School & Hosp. v. Halderman,
465 U.S. 89, 98-100 (1984).
Moreover, Defendant New York State Appellate Division
Third Department is merely an agency or arm of New
York State. See Ognibene v. Niagara Cnty. Sheriff's Dep't,
03-CV-0678E, 2003 WL 2443989, at *3 (W.D.N.Y. Dec.
1, 2003) (“To the extent the plaintiff names various state
courts as defendants and seeks either legal or equitable
relief against them under § 1983, they are immune from
such suit under the Eleventh Amendment.”). As an agency
or arm of the State of New York, the court is immune
from suit under the Eleventh Amendment. See Kentucky
v. Graham, 473 U.S. 159, 166 (1985); see also Mercado
v. Town of Goshen, 20-CV-5399, 2020 WL 5210949, at
*3 (S.D.N.Y. Aug. 28, 2020) (“Plaintiff sues the ‘Orange
County Court,’ which is part of the New York State Unified
Court System. The Court therefore dismisses Plaintiff's §
1983 claims against this Defendant under the doctrine of
Eleventh Amendment immunity and because these claims
are frivolous.”); Curto v. Palisades Collection, LLC, 07-
CV-529S, 2008 WL 11357852, at *4 (W.D.N.Y. Mar. 10,
2008) (dismissing the plaintiff's claims against the “New York
State Unified Court System, 8 th Judicial District Buffalo City
Court” as barred by the Eleventh Amendment); Saint-Fleur
v. City of New York, 99-CV-10433, 2000 WL 280328, *2
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 26 of 151

Benyi v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
(S.D.N.Y., Mar. 14, 2000) (collecting cases) (“State courts,
as arms of the State, are entitled to Eleventh Amendment
immunity from suit in federal court.”); Fields v. Walthers,
94-CV-1659, 1997 WL 204308 at *2 (N.D.N.Y. April 5,
1997) (Pooler, J.) (“For Eleventh Amendment purposes,
governmental entities of the state that are considered ‘arms of
the state’ receive Eleventh Amendment immunity.”).
As a result, I recommend that Plaintiff's claims against
Defendants New York and New York Appellate Division
Third Department 11 be dismissed with prejudice and without
leave to amend. Johnson v. Fischer, 19-CV-1384, 2020
WL 758964, at *2 (N.D.N.Y. Feb. 14, 2020) (Stewart,
M.J.) (recommending dismissal, without leave to amend,
claims against the Appellate Division Third Department);
Dinsio v. Appellate Division, Third Dep't, 16-CV-0324, 2017
WL 3016832, at *12 (N.D.N.Y. July 14, 2017) (Suddaby,
C.J.) (citing Zuckerman v. Appellate Division, Second Dep't,
Supreme Court of the State of N.Y., 421 F.2d 625, 626 (2d
Cir. 1970); Bernstein v. New York, 591 F. Supp. 2d 448, 465
(S.D.N.Y. 2008)) (“Defendant correctly argues that, as the
sole named Defendant in this case, the Eleventh Amendment
bars Plaintiff's claims because the Third Department is
considered ‘an arm of the state of New York.’ ”).
2. Claims Against Defendants Binghamton Police
Department and Broome County Sheriff's Department
*6 After careful consideration, I recommend dismissal
of Plaintiff's claims pursuant to 42 U.S.C. § 1983 against
Defendants Binghamton Police Department and Broome
County Sheriff's Department because they are not entities
susceptible to suit.
A municipal police department is not susceptible to suit
pursuant to 42 U.S.C. § 1983. La Grande v. Town of
Bethlehem Police Dep't, 08-CV-0738, 2009 WL 2868231,
at *2 (N.D.N.Y. Sept. 1, 2009) (Kahn, J.); Davis v.
Lynbrook Police Dep't, 224 F. Supp. 2d 463, 477 (E.D.N.Y.
2002) (internal citations omitted). “Under New York law,
departments which are merely administrative arms of a
municipality do not have a legal identity separate and apart
from the municipality and cannot sue or be sued.” Walker
v. U.S. Marshalls, 08-CV-0959, 2009 WL 261527, at *2
(E.D.N.Y. Feb. 4, 2009) (quoting Hall v. City of White
Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002)); see also
Nicholson v. Lenczewski, 356 F. Supp. 2d 157, 164 (D. Conn.
2005) (collecting cases).
Here, Plaintiff's claims against Defendants Binghamton
Police Department and Broome County Sheriff's Department,
which have no legal, separate identity apart from the
City of Binghamton and Broome County, respectively, are
not plausible. Therefore, I recommend dismissal of the
claims against Defendants Binghamton Police Department
and Broome County Sheriff's Department, with prejudice
and without leave to amend. See Jackson v. Gunsalus, 16-
CV-0647, 2016 WL 4004612, at *5 (N.D.N.Y. June 24,
2016) (Dancks, M.J.), report and recommendation adopted,
2016 WL 3983635 (July 25, 2016) (Sharpe, J.) (dismissing
claims against the Syracuse Police Department with prejudice
and without leave to amend because the Syracuse Police
Department “is not susceptible to suit under § 1983.”);
Makas v. Benjamin, 09-CV-0129, 2009 WL 3871441, at
*3 (N.D.N.Y. Nov. 18, 2009) (Kahn, J.) (dismissing claims
against Ulster County Sheriff's Department as it is “an
administrative arm of the county,” which cannot be sued
under § 1983).
3. Claims Against Defendants United States
District Court for the Northern District of New
York 12 and Second Circuit Court of Appeals
*7 After carefully considering the matter, I recommend that
Plaintiff's claims against Defendants United States District
Court for the Northern District of New York and Second
Circuit Court of Appeals be dismissed based on the doctrine
of sovereign immunity.
“Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.” Fed. Deposit Ins.
Corp. v. Meyer, 510 U.S. 471, 475 (1994); see also Robinson
v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.
1994) (“Because an action against a federal agency or federal
officers in their official capacities is essentially a suit against
the United States, such suits are also barred under the doctrine
of sovereign immunity, unless such immunity is waived.”).
“[T]he United States is immune from constitutional tort
claims against the United States, its agencies, or federal
employees sued in their official capacities.” Perez v. Hawk,
302 F. Supp. 2d 9, 18 (E.D.N.Y. 2004).
As a result, I recommend that Plaintiff's § 1983 claims against
the Federal defendants be dismissed for lack of subject matter
jurisdiction. See, e.g., Johnson v. Wolfe, 19-CV-7337, 2019
WL 5784704, at *3-4 (S.D.N.Y. Nov. 5, 2019) (dismissing
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 27 of 151

Benyi v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
claims against, inter alia, the Second Circuit Court of Appeals
based on the doctrine of sovereign immunity); Forjone v.
Dep't of Motor Vehicles, 414 F. Supp. 3d 292, 301 (N.D.N.Y.
2019) (Hurd, J.) (dismissing the plaintiff's claims against the
federal defendants pursuant to, inter alia, 42 U.S.C. § 1983,
based on the doctrine of sovereign immunity); Olmeda v.
Babbits, 07-CV-2140, 2008 WL 282122, at *5 (S.D.N.Y. Jan.
25, 2008) (dismissing plaintiff's §§ 1983, 1985, 1986 claims
against federal agencies as barred by sovereign immunity).
The Court has also considered whether the Federal Tort
Claims Act (“FTCA”) might provide Plaintiff a means of
relief. The FTCA grants a limited waiver of sovereign
immunity that applies to “claims against the United States for
money damages ... for injury ... caused by the negligent or
wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.” 28
U.S.C. § 1346(b).
“Thus, for liability to arise under the FTCA, a plaintiff's cause
of action must be comparable to a cause of action against a
private citizen recognized in the jurisdiction where the tort
occurred, and his allegations, taken as true, must satisfy the
necessary elements of that comparable state cause of action.”
Chen v. United States, 854 F.2d 622, 626 (2d Cir. 1988).
However, there is no indication that Plaintiff properly
exhausted any possible claim under the FTCA, which
requires a claimant to “first present[ ] the claim to the
appropriate Federal agency” and have it “denied by the
agency in writing.” 28 U.S.C. § 2675(a). This failure provides
independent justification to dismiss any such claim against
the Federal defendants, too. See, e.g., Celestine v. Mt.
Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir.
2005) (“The FTCA requires that a claimant exhaust all
administrative remedies before filing a complaint in federal
district court.”).
*8 Moreover, Plaintiff has improperly named the federal
agencies as defendants in this action. See, e.g., Langella v.
Bush, 306 F. Supp. 2d 459, 463 (S.D.N.Y. 2004) (“Under the
FTCA, suit must be brought directly against the United States,
and federal agencies are immune from suit.”).
As a result, I recommend that Plaintiff's claims against
Defendants United States District Court for the Northern
District of New York and Second Circuit Court of Appeals,
be dismissed.
4. Claims Against Defendants Angel
and Guyyey in Their Official Capacities
To the extent that Plaintiff intended to sue Defendants Angel
and Guyyey in their official capacities, the Supreme Court
has explained that this kind of claim is “to be treated as
a suit against the entity”; i.e., the City of Binghamton and
Broome County. See Kentucky v. Graham, 473 U.S. 159,
165-66 (1985).
In Monell v. Dep't of Soc. Servs., the Supreme Court held that
a municipality may be held liable under § 1983 if a plaintiff
can demonstrate that the constitutional violation was caused
by a municipal “policy or custom.” Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 694 (1978). However, the Supreme
Court has intentionally made these so-called “Monell” claims
“hard to plead and hard to prove.” Crawley v. City of Syracuse,
17-CV-1389, 2020 WL 6153610, at *9 (N.D.N.Y. Oct. 21,
2020) (Hurd, J.). “Unlike state tort law, a municipality cannot
be held liable under § 1983 merely because it happened to
employ the alleged tortfeasor.” Crawley, 2020 WL 6153610,
at *9.
Instead, “under § 1983[ ] local governments are responsible
only for ‘their own illegal acts.’ ” Connick v. Thompson, 563
U.S. 51, 60 (2011) (emphasis in original) (quoting Pembaur
v. Cincinnati, 475 U.S. 469, 479 (1986)). Thus, “to establish
municipal liability under 42 U.S.C. § 1983, a plaintiff must
demonstrate that the deprivation of his constitutional right
was ‘caused by a governmental custom, policy or usage of the
municipality.’ ” Deferio v. City of Syracuse, 770 F. App'x 587,
589 (2d Cir. 2019) (summary order) (quoting Jones v. Town
of East Haven, 691 F.3d 72, 80 (2d Cir. 2012)).
Through a series of decisions, the Supreme Court has
recognized that Monell liability may be established through:
(1) a policy formally adopted and endorsed by the
municipality; (2) actions taken by policymaking officials that
caused the particular deprivation alleged; (3) practices by
subordinate officials that are not expressly authorized but are
so widespread and consistent that policymakers must have
been aware of them; or (4) a failure by policymakers to train
or supervise that amounts to “deliberate indifference” to the
rights of those who come into contact with the inadequately
trained or supervised municipal employees. Deferio, 770
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 28 of 151

Benyi v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 6
F. App'x at 590 (collecting cases); see also Benacquista v.
Spratt, 217 F. Supp. 3d 588, 599-600 (N.D.N.Y. 2016) (Hurd,
J.) (recognizing same theories of liability).
The Complaint does not allege facts plausibly suggesting
that the City of Binghamton or County of Broome violated
Plaintiff's rights based on a custom, policy, or practice. (See
generally Dkt. No. 1.) In fact, the Complaint is devoid of any
factual assertions related to wrongdoing by these municipal
entities.
*9 As a result, I recommend that, to the extent Plaintiff
intended to assert claims against Defendants Angel and
Guyyey in their official capacities, those claims be dismissed
for failure to state a claim upon which relief may be granted.
5. Statute of Limitations
The statute of limitations for a § 1983 action accruing in New
York is three years. Shomo v. City of New York, 579 F.3d 176,
181 (2d Cir. 2009). The statute of limitations begins to run on
the date that the plaintiff's claims accrues. Wallace v. Kato,
549 U.S. 384, 388 (2007). Federal law governs the accrual
date. Morse v. Univ. of Vt., 973 F.2d 122, 125 (2d Cir. 1992).
Generally, under federal law, a cause of action accrues when
“the plaintiff knows or has reason to know the injury which is
the basis of his action.” Covington v. New York, 171 F.3d 117,
121 (2d Cir. 1999) (quoting Singleton v. City of New York, 632
F.2d 185, 191 (2d Cir. 1980)); see Fahs Constr. Grp., Inc. v.
Gray, 725 F.3d 289, 292 (2d Cir. 2013) (per curiam) (citing
Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002))
(a claim for equal protection accrues “when the plaintiff knew
or should have known of the disparate treatment.”). That is
so even if “the full extent of the injury is not then known
or predictable.” Fahs Const. Group, Inc., 725 F.3d at 292.
“[S]tate tolling rules determine whether the limitations period
has been tolled, unless state tolling rules would ‘defeat the
goals’ of section 1983.” Abbas v. Dixon, 480 F.3d 636, 641
(2d Cir. 1997) (citing Pearl, 296 F.3d at 80).
Although the statute of limitations is an affirmative defense,
where it is clear from the face of the complaint that a claim
is barred by the applicable statute of limitations, the claim
is subject to dismissal for failure to state a claim on 28
U.S.C. § 1915(e)(2)(B) review. See Pino v. Ryan, 49 F.3d
51, 53 (2d Cir. 1995) (holding that a complaint can be
dismissed on initial review based on a defense that appears
on the face of the complaint); Syfert v. City of Rome, 17-
CV-0578, 2018 WL 3121611, at *3-5 (N.D.N.Y. Feb. 12,
2018) (Dancks, M.J.) (dismissing all claims barred by the
statute of limitations on initial review pursuant to 28 U.S.C.
§ 1915(e)(2)(B)), report and recommendation adopted by,
2018 WL 2316681 (N.D.N.Y. May 22, 2018) (Suddaby, C.J.);
Syfert v. City of Rome, 17-CV-0578, 2017 WL 3405521,
at *8-10 (N.D.N.Y. Aug. 7, 2017) (Dancks, M.J.) (same),
report and recommendation adopted by, 2017 WL 5195230
(N.D.N.Y. Nov. 9, 2017) (Suddaby, C.J.); Syfert v. City of
Rome, 15-CV-1149, 2015 WL 6819168, at *7-8 (N.D.N.Y.
2015) (Kahn, J.) (same).
Here, drawing all reasonable inferences and construing the
Complaint liberally, Plaintiff commenced this action on
November 20, 2020. (Dkt. No. 1.) 13 As a result, any causes of
action in Plaintiff's Complaint that accrued before November
20, 2017, are barred by the statute of limitations.
The only dates set forth in the Complaint are (1) an incident
that occurred on April 17, 1987, (2) an incident that occurred
on May 30, 1987, and (3) Plaintiff's criminal trial that took
place February 1988. (Dkt. No. 1 at 2; Dkt. No. 1, Attach. 1 at
1.) The Court also notes that Defendant New York Appellate
Division Third Department denied Plaintiff's appeal on July
20, 1989. People v. Benyi, 152 A.D.2d 864 (N.Y. App. Div.
3d Dep't 1989). Moreover, on October 19, 1989, the New
York Court of Appeals denied Plaintiff leave to appeal. People
v. Benyi, 74 N.Y.2d 894 (N.Y. 1989). As set forth in note 5
supra, on February 22, 1991, Plaintiff filed a writ of habeas
corpus claim in Defendant United States District Court for the
Northern District of New York, which was dismissed on April
17, 1996. (Benyi II, Dkt. No. 43.) Any causes of action related
to incidents that occurred on these dates, which occurred
approximately twenty years before November 20, 2017, are
barred by the statute of limitations.
*10 Moreover, I find that Plaintiff's allegations do
not amount to a “continuing violation.” The continuing
violation doctrine, where applicable, is an “exception to the
normal knew-or-should-have-known accrual date” if there is
evidence of an ongoing discriminatory policy or practice.
Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015) (quoting
Harris v. City of New York, 186 F.3d 243, 248 (2d Cir. 1999)).
The continuing violation doctrine does not apply to “discrete
acts,” even where those discrete acts are a part of a “serial
violation,” but applies solely to claims that “by their nature
accrue only after the plaintiff has been subjected to some
threshold amount of mistreatment.” Gonzalez, 802 F.3d at
220 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 29 of 151

Benyi v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 7
101, 111 (2002)). When the doctrine applies, the limitations
period begins to run when the defendant has engaged in
“enough activity to make out an actionable ... claim,” as long
as the plaintiff has alleged some non-time-barred acts which
contributed to the alleged violation. Id. (quoting Morgan, 536
U.S. at 117; Harris, 186 F.3d at 250). A continuing violation
cannot “be established merely because the claimant continues
to feel the effects of a time-barred discriminatory act.” Harris,
186 F.3d at 250 (citing Lightfoot v. Union Carbide Corp., 110
F.3d 898, 907 (2d Cir. 1997)).
The continuing violation doctrine is generally disfavored in
this Circuit. See Town of Ramopo v. Town of Clarkstown,
16-CV-2004, 2017 WL 782500, at *5 (S.D.N.Y. Feb. 27,
2017); Grimes v. Fremont Gen. Corp., 785 F. Supp. 2d
269, 292 (S.D.N.Y. 2011) (quoting Trinidad v. N.Y.C. Dep't
of Corr., 423 F. Supp. 2d 151, 165 n.11 (S.D.N.Y. 2006))
(“[C]ourts in the Second Circuit ‘have been loath to apply
[the continuing violation doctrine] absent a showing of
compelling circumstances.’ ”).
According to Plaintiff, “[o]n April 17, 1987, Detective Sgt.
Barry Angel did concoct a proven false ‘confession’ to proven
non-existent crimes.” (Dkt. No. 1, Attach. 1 at 1.) Thus, to
the extent that Plaintiff asserts causes of action related to this
alleged wrong, the claims, if any, would have accrued in 1987,
or, at the very latest, February 1988, when the “crime lab
examiner and pathologist testified for the DEFENSE” and
Plaintiff was acquitted of all indicted charges. (Dkt. No. 1 at
3; Dkt. No. 1, Attach. 1 at 1.)
In addition, Plaintiff alleges that “[o]n May 30, 1987, 3 days
after the crime lab report was issued proving the confession
was a fraud, Det. Angel and Deputy Sheriff William Guyyey
arranged to have [Plaintiff] attacked.” (Dkt. 1, Attach. 1 at 1.)
Plaintiff does not assert any allegations plausibly suggesting
that he lacked a complete and present cause of action after the
alleged attack on May 30, 1987. (See generally Dkt. No. 1.)
The other allegations in Plaintiff's Complaint appear to have
occurred several years, possibly decades, apart. (Dkt. 1,
Attach. 1.) As a result, I find no compelling circumstances
present to warrant applying the continuing violation doctrine.
Under New York law, “the doctrine of fraudulent concealment
prevents a party from fraudulently concealing wrongdoing
until after the tolling of the statute of limitations.” Aiken v.
Nixon, 236 F. Supp. 2d 211, 240 (N.D.N.Y. 2002) (McAvoy,
J.). “To invoke the doctrine of fraudulent concealment
properly [for purposes of seeking an equitable tolling of
the statute of limitations], a plaintiff must establish three
elements, including: (1) wrongful concealment by defendants
[of their actions], (2) which prevented plaintiff's discovery
of the nature of the claim within the limitations period, and
(3) due diligence in pursuing the discovery of the claim.”
New York Dist. Council of Carpenters Pension Fund v. Forde,
939 F. Supp. 2d 268, 278 (S.D.N.Y. 2013) (citing In re
Merrill Lynch Ltd. P'ships Litig., 154 F.3d 56, 60 (2d Cir.
1998); Butala v. Agashiwala, 916 F. Supp. 314, 319 (S.D.N.Y.
1996)). “The relevant question is not the intention underlying
defendants’ conduct, but rather whether a reasonable plaintiff
in the circumstances would have been aware of the existence
of a cause of action.” Veltri v. Bldg. Serv. 32b-J Pension Fund,
393 F.3d 318, 323 (2d Cir. 2004) (citing Pearl, 296 F.3d at
82; Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th
Cir. 1990)).
*11 Here, the Court finds Plaintiff has not plausibly alleged
any of the three elements to invoke this doctrine.
Further, although not raised by Plaintiff, having carefully
reviewed the Complaint, the Court discerns no basis to invoke
equitable tolling or equitable estoppel in order to salvage
what are otherwise patently untimely claims. Under New
York law, equitable tolling applies “where a plaintiff has
been prevented in some extraordinary way from exercising
rights,” such that “it would have been impossible for a
reasonably prudent person to learn about his or her cause
of action.” Pearl, 296 F.3d at 85. In a related but slightly
different vein, equitable estoppel is available “where the
plaintiff knew of the existence of his cause of action but
the defendant's conduct caused him to delay bringing the
lawsuit.” Dillman v. Combustion Eng'g, Inc., 784 F.3d 76, 85
(2d Cir. 1986); see also Abbas, 480 F.3d at 642 (stating that
equitable estoppel applies when a “plaintiff was induced by
fraud, misrepresentation or deception to refrain from filing
a timely action”). Under either doctrine, “[d]ue diligence on
the part of the plaintiff in bringing an action ... is an essential
element of equitable relief.” Abbas, 480 F.3d at 642 (quoting
Doe v. Holy See (State of Vatican City), 17 A.D. 3d 793, 796
(N.Y. App. Div. 3d Dep't 2005)).
As a result, the Court finds Plaintiff is not entitled to tolling
and, thus, his claims, which are based on events that occurred
before November 20, 2017, are time barred.
Therefore, I recommend dismissing Plaintiff's claims
pursuant to 42 U.S.C. § 1983, as untimely.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 30 of 151

Benyi v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 8
B. Claims Pursuant to 28 U.S.C. § 1997
Plaintiff refers to 28 U.S.C. § 1997 14 as a basis for claims
that he asserted in another lawsuit against the New Mexico
Probation/Parole and LaPosada Halfway House. (Dkt. No. 1
at 7.)
To the extent that Plaintiff intended to assert claims here
pursuant to 42 U.S.C. § 1997, which deals with suits by
prisoners regarding prison conditions, I recommend that those
claims be dismissed.
The statute provides in 42 U.S.C. § 1997j, “[t]he provisions
of this subchapter shall in no way expand or restrict the
authority of parties other than the United States to enforce
the legal rights which they may have pursuant to existing
law with regard to institutionalized persons.” 42 U.S.C. §
1997j (2006). “This clause precludes recognition of a private
cause of action under 42 U.S.C. § 1997.” Kerchee v. Smith,
11-CV-0459, 2011 WL 5143135, at *2, n.9 (W.D. Okla.
Sept. 30, 2011); accord Chichakli v. Samuels, 15-CV-0687,
2016 WL 11447755, at *5, n.12 (W.D. Okla. Mar. 10, 2016)
(“The PLRA does not provide any private right of action.”);
Woodstock v. Shaffer, 15-CV-0041, 2015 WL 13614123, at
*5 (D. Colo. Sept. 24, 2015) (citing 42 U.S.C. § 1997(a)
(c)) (holding that the Civil Rights of Institutionalized Persons
Act “does not provide for an individual right of action.”);
see McRorie v. Shimoda, 795 F.2d 780, 782 n. 3 (9th Cir.
1986) (stating that 42 U.S.C. § 1997j “precludes a private
cause of action” under 42 U.S.C. §§ 1997-1997j); Callahan v.
Southwestern Medical Ctr., 03-CV-1434, 2005 WL 1238770,
at *6 (W.D. Okla. Apr. 29, 2005) (stating that “[c]ourts have
consistently found” that the Civil Rights of Institutionalized
Persons Act, 42 U.S.C. § 1997a “does not provide for a[n]
individual right of action” (citations omitted)), report and
recommendation adopted by, 2005 WL 1656917 (W.D. Okla.
July 7, 2005), aff'd, 178 F. App'x 837, 840 (10th Cir. May 8,
2006).
C. Claims Pursuant to the ADA
*12 Plaintiff refers to the ADA as a basis for claims
that he asserted in another lawsuit against the New Mexico
Probation/Parole and LaPosada Halfway House. (Dkt. No. 1
at 7.)
To the extent that Plaintiff intended to assert claims here
pursuant to the ADA, I recommend that those claims be
dismissed.
1. Statute of Limitations
“[T]he ADA's statute of limitations is three years.” De La
Rosa v. Lewis Foods of 42nd Street, LLC, 124 F. Supp. 3d 290,
299, n.14 (S.D.N.Y. 2015). For the reasons set forth supra,
in Part III.A.5. of this Order and Report Recommendation,
I recommend that Plaintiff's claims pursuant to the ADA be
dismissed as time barred.
2. Failure to State A Claim
In the alternative, I recommend that Plaintiff's ADA claims be
dismissed for failure to state a claim upon which relief may
be granted.
Although the Compliant is sparse, and largely
incomprehensible, it states that Plaintiff is a “71-year old,
100% disabled veteran of the United States Navy.” (Dkt. No.
1, Attach. 1 at 1.) The Complaint provides no allegations of
discrimination based on his disability. (See generally Dkt. 1.)
However, construing the Complaint liberally, as the Court
must, Plaintiff failed to allege facts plausibly suggesting
claims pursuant to Title II or Title III of the ADA. 15
i. Title II of the ADA
*13 Title II of the ADA “proscribes discrimination against
the disabled in access to public services.” Harris v. Mills, 572
F.3d 66, 73 (2d Cir. 2009) (citing Powell v. Nat'l Bd. of Med.
Exam'rs, 364 F.3d 79, 84-85 (2d Cir. 2004), corrected, 511
F.3d 238 (2d Cir. 2004)). The ADA 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
the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. §
12132. The ADA is applicable to inmates in state correctional
facilities. Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206,
213 (1998); Wright v. New York State Dep't of Corr., 831 F.3d
64, 72 (2d Cir. 2016).
Here, the Compliant is devoid of any factual allegations
plausibly suggesting that Plaintiff was unable to access
programs due to his disability, how his disability prevented
him from accessing those programs, or what accommodations
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 31 of 151

Benyi v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 9
he sought and was denied by Defendants. (See generally Dkt.
1.) Courts “routinely dismiss ADA suits by disabled inmates
that ... do not allege that the inmate was treated differently
because of his or her disability.” Elbert v. New York State Dep't
of Corr. Servs., 751 F. Supp. 2d 590, 595 (S.D.N.Y. 2010).
In addition, other than a conclusory assertion that he is
disabled, Plaintiff does not assert facts plausibly alleging that
he is a qualified individual under the ADA. See Schlosser
v. Walker, 20-CV-0433, 2020 WL 7324679, at *3 (D. Conn.
Dec. 11, 2020) (holding that the plaintiff's allegation that
he suffers from “a serious mental illness” was insufficient
to allege that he was a qualified individual pursuant to the
ADA); Burdick v. Town of Schroeppel, 16-CV-1393, 2017
WL 5509355, at *13 (N.D.N.Y. Jan. 31, 2017) (Dancks,
M.J.) (“A plaintiff's complaint must plead facts plausibly
suggesting that his alleged disability can meet all of the
elements contained in the ADA's definition of disability.”);
see also Hale v. King, 642 F.3d 492, 500 (5th Cir. 2011)
(holding that, “[t]o establish a claim under [42 U.S.C. §
12102(1)(A)], a plaintiff must allege that he (1) has a[n] ...
impairment that (2) substantially limits (3) a major life
activity,” and dismissing plaintiff's complaint where it failed
to allege, inter alia, “that his conditions substantially limited
him in his performance of a life activity”); Cox v. Civista Med.
Ctr., 16 F. App'x 185, 186 (4th Cir. 2001) (affirming district
court's dismissal of the plaintiff's complaint because it failed
to “demonstrate a disability” under 42 U.S.C. § 12102(1)
(A) or (B)); Ajuluchuku v. Macy's, 12-CV-1855, 2012 WL
5464467, at *3 (E.D. Cal. Nov. 7, 2012) (dismissing the
plaintiff's amended complaint because it did “not allege facts
establishing any of [the] elements [of 42 U.S.C. § 12102(1)]);
Thompson v. New York City Dep't of Probation, 03-CV-4182,
2003 WL 22953165, at *3 n.5 (S.D.N.Y. Dec. 12, 2003)
(“Under the ADA definition of ‘disability,’ merely pleading a
physical impairment without specifying that it ‘substantially
limits’ a ‘major life activity’ may be insufficient to state a
claim for relief.”).
As a result, in the alternative, I recommend that Plaintiff's
ADA claims under Title II be 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. See Hill v. LaClair,
20-CV-0441, 2020 WL 2404771, at *8 (N.D.N.Y. May 11,
2020) (Hurd, J.) (dismissing ADA Title II claims “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.”). 16
ii. Title III of the ADA
*14 Title III of the ADA prevents discrimination based on
a disability in places of public accommodation. 42 U.S.C. §
12182. However, Title III “expressly does not apply to public
entities, including local governments.” Bloom v. Bexar Cnty.,
130 F.3d 722, 726 (5th Cir. 1997); see Morales v. New York,
22 F. Supp. 3d 256, 266-67 (S.D.N.Y. 2014) (“Title III is not
applicable to public entities.”). Instead, “[a] claim under Title
III of the [ADA] can only be asserted against a private entity
engaged in the provision of public accommodations, such as
an inn, hotel or private school.” Morales, 22 F. Supp. 3d at
266 (citing 42 U.S.C. §§ 12181(7); 12182); see also Booker
v. City of New York, 17-CV-7035, 2018 WL 4616048, at *5,
n.3 (S.D.N.Y. Sept. 26, 2018) (holding that a claim pursuant
to Title III of the ADA cannot be asserted against the City of
New York or its employees in their official capacities because
they are not private entities engaged in the provision of public
accommodations).
Here, Defendants are public entities, which are thus, not
amenable to a Title III ADA claim. See Maioriello v. New
York State Office for People with Dev. Disabilities, 14-
CV-0214, 2015 WL 5749879, at *16 (N.D.N.Y. Sept. 30,
2015) (Suddaby, C.J.) (dismissing the plaintiff's claims to the
extent that they were based on a violation of Title III because
the New York State Office for People with Developmental
Disabilities is a public entity). 17
Moreover, for the reasons set forth supra, in Part III.C.2.i.
of this Order and Report-Recommendation, Plaintiff failed to
allege that he was a qualified individual pursuant to the ADA.
In addition, “Title[ ] ... III of the ADA prohibit[s]
discrimination against qualified disabled individuals by
requiring that they receive ‘reasonable accommodations’
that permit them to have access to and take a meaningful
part in public services and public accommodations.”
Powell, 364 F.3d at 85, opinion corrected, 511 F.3d 238
(2d Cir. 2004) (citations omitted). To adequately plead
a claim pursuant to Title III of the ADA for failure
to provide reasonable accommodations, a plaintiff must
allege facts establishing that the defendant's “failure to
make ‘reasonable modifications’ to their policies, practices,
and procedures deprived plaintiff of the ability to access
the ‘goods, services, facilities, privileges, advantages, or
accommodations’ available to those lacking [the] plaintiff's
disabilities.” Andersen v. N. Shore Long Island Jewish
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 32 of 151

Benyi v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 10
Healthcare Sys. Zucker Hillside Hosp., 12-CV-1049, 2013
WL 784391, at *9 (E.D.N.Y. Jan. 23, 2013) (quoting 42
U.S.C. 12182(b)(2)(A)(i)-(ii) (additional citation omitted)),
report and recommendation adopted as modified, 2013 WL
784344 (E.D.N.Y. Mar. 1, 2013).
Here, the Complaint is devoid of factual allegations
concerning “policies, practices, [or] procedures” by
Defendants that deprived Plaintiff of ability to access goods,
services, or privileges available to those without Plaintiff's
disabilities. Doe v. NYSARC Tr. Serv., Inc., 20-CV-801, 2020
WL 5757478, at *8 (N.D.N.Y. Sept. 28, 2020) (Hummel,
M.J.), report and recommendation adopted by, 2020 WL
7040982 (N.D.N.Y. Dec. 1, 2020) (Sannes, J.).
*15 As a result, I recommend that, in the alternative, to the
extent that Plaintiff intended to assert claims pursuant to Title
III of the ADA, those claims be dismissed for failure to state
a claim.
D. Relief Sought by Plaintiff is Inappropriate
The only relief that Plaintiff appears to seek is his immediate
release to his V.A. caregiver and fiduciary in California.
(Dkt. No. 1 at 5.) However, the Supreme Court has held
that a challenge by a prisoner to the fact or duration of his
confinement and seeking an immediate or earlier release from
that confinement must be pursued through a habeas corpus
proceeding rather than in an ordinary civil rights action.
Preiser v. Rodriguez, 411 U.S. 475, 489 (1973); see Garcia
v. Westchester Cnty. District Attorney Office, 21-CV-0348,
2021 WL 411546, at *3 (S.D.N.Y. Feb. 4, 2021) (“A plaintiff
may not challenge the validity of his confinement or seek
release from custody in a civil action under § 1983, but must
instead bring a petition for a writ of habeas corpus to seek such
relief.”); Martinez v. Hynes, 20-CV-4325, 2021 WL 242232,
at *2 (E.D.N.Y. Jan. 22, 2021) (“Prisoners have other ways of
challenging convictions they believe to be unconstitutional,
first through direct appeal and then through a writ of habeas
corpus pursuant to 28 U.S.C. § 2254); London v. Nassau Cnty.
District Attorney's Office, 20-CV-3988, 20-CV-3989, 20-
CV-3990, 2020 WL 7699644, at *9, n.6 (E.D.N.Y. Dec. 28,
2020) (abstaining from adjudicating the plaintiff's remaining
claims seeking injunctive relief because habeas corpus relief
is the exclusive remedy in federal court for a state prisoner
seeking release from custody).
In this case, the Complaint and attached exhibits do not
reflect that Plaintiff has complied with the exhaustion
requirements for filing a habeas petition pursuant to 28 U.S.C.
§ 2254. As a result, in the alternative, to the extent that
Plaintiff's Complaint could be construed as a habeas petition,
I recommend that it be dismissed for failure to exhaust the
available state court remedies. Patterson v. New York, 2020
WL 7646739, at *3 (N.D.N.Y. Dec. 23, 2020) (D'Agostino, J.)
(dismissing the plaintiff's complaint to the extent that it could
be construed as a habeas petition where the plaintiff failed to
allege that he complied with the exhaustion requirements for
filing a habeas corpus petition and holding that a plaintiff may
not challenge the legality of his conviction through a section
1983 action and may only obtain that relief by bringing a
petition for a writ of habeas corpus).
V. OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a
complaint filed by a pro se litigant 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.”
Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see
Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave
when justice so requires.”). An opportunity to amend is not
required, however, where “the problem with [the plaintiff's]
causes of action is substantive” such that “better pleading
will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000); see Cortec Indus. Inc. v. Sum Holding L.P., 949
F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff
is unable to allege any fact sufficient to support its claim,
a complaint should be dismissed with prejudice.”). Stated
differently, “[w]here it appears that granting leave to amend
is unlikely to be productive, ... it is not an abuse of discretion
to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987
F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-
CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997)
(Pooler, J.). 18
*16 With respect to Plaintiff's claims pursuant to 42 U.S.C.
§ 1983, I recommend that the claims against Defendants
New York, Binghamton Police Department, Broome County
Sheriff's Department, New York Appellate Division Third
Department, United States District Court for the Northern
District of New York, and Second Circuit Court of Appeals,
be dismissed with prejudice and without leave to amend. See
Forjone, 414 F. Supp. 3d at 303-04 (dismissing with prejudice
the plaintiff's claims against the state and federal defendants
based on the doctrine of sovereign immunity because
“[p]ermitting amendment would be unproductive in this
instance.”); Johnson, 2020 WL 758964, at *2 (recommending
dismissal, without leave to amend, the plaintiff's claims
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 33 of 151

Benyi v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 11
against the Appellate Division Third Department); Jackson,
2016 WL 4004612, at *5 (dismissing claims against the
Syracuse Police Department with prejudice and without leave
to amend because the Syracuse Police Department “is not
susceptible to suit under § 1983.”). However, to the extent
that Plaintiff attempted to assert claims against Defendants
Angel and Guyyey—in their individual or official capacities
—I am unable to conclude with complete certainty that if
permitted leave to amend the complaint, Plaintiff could not
assert a plausible claim pursuant to 42 U.S.C. § 1983.
Moreover, generally, a district court should not dismiss claims
as time barred without providing a pro se plaintiff with
“notice and opportunity to be heard” as to whether there
might be a meritorious tolling argument or other reason why
the complaint might be considered. Abbas, 480 F.3d at 640.
Therefore, I recommend that Plaintiff's time barred claims
pursuant to 42 U.S.C. § 1983 and the ADA be dismissed with
leave to amend. 19
In addition, I recommend that to the extent that Plaintiff
intended to assert claims pursuant to 42 U.S.C. § 1997,
those claims be dismissed with prejudice and without
leave to amend because permitting amendment would be
unproductive.
If Plaintiff chooses to file an amended complaint, he
should note that the law in this circuit clearly provides
that “ ‘complaints relying on the civil rights statutes are
insufficient unless they contain some specific allegations of
fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no meaning.’
” Hunt v. Budd, 895 F. Supp. 35, 38 (N.D.N.Y. 1995)
(McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363
(2d Cir. 1987)); accord Pourzancvakil v. Humphry, 94-
CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22,
1995) (Pooler, J.). Therefore, in any amended complaint,
Plaintiff must clearly set forth facts that give rise to the
claims, including the dates, times, and places of the alleged
underlying acts, and each individual who committed each
alleged wrongful act. In addition, the revised pleading should
allege facts demonstrating the specific involvement of any
of the named defendants in the constitutional deprivations
alleged in sufficient detail to establish that they were tangibly
connected to those deprivations. Bass v. Jackson, 790 F.2d
260, 263 (2d Cir. 1986). Finally, Plaintiff is informed that any
such amended complaint will replace the existing Complaint
and must be a wholly integrated and complete pleading that
does not rely upon or incorporate by reference any pleading
or document previously filed with the Court. See Shields v.
Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)
(“It is well established that an amended complaint ordinarily
supersedes the original and renders it of no legal effect.”).
ACCORDINGLY, it is
ORDERED that the amended application to proceed in
forma pauperis (Dkt. No. 4) is DENIED WITHOUT
PREJUDICE; and it is further 20
*17 ORDERED that the Clerk of the Court shall provide
Plaintiff with a blank inmate authorization form; and it is
further
ORDERED that the Clerk of the Court shall amend the
docket so as to ADD as Defendants the additional entities
and individuals identified in the Complaint (i.e. the Broome
County Sheriff's Department, Detective Sergeant Barry
Angel, and Deputy Sheriff William Guyyey); and it is further
respectfully
RECOMMENDED that the Court DISMISS WITHOUT
LEAVE TO REPLEAD Plaintiff's (1) claims pursuant to 42
U.S.C. § 1983 against Defendants New York, Binghamton
Police Department, Broome County Sheriff's Department,
New York State Appellate Division Third Department, United
States District Court for the Northern District of New York,
and Second Circuit Court of Appeals; and (2) claims pursuant
to 42 U.S.C. § 1997, for failure to state a claim upon which
relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)
and 28 U.S.C. § 1915A(b); and it is further respectfully
RECOMMENDED that the Court DISMISS WITH
LEAVE TO REPLEAD Plaintiff's (1) claims pursuant to 42
U.S.C. § 1983 against Defendants Angel and Guyyey; and (2)
claims pursuant to the ADA, for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. § 1915(e)
(2)(B) and 28 U.S.C. § 1915A(b); and it is further
ORDERED that the Clerk of the Court shall file a copy of
this order, report, and recommendation on the docket of this
case and serve a copy upon the parties in accordance with the
local rules. 21
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. 22 Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 34 of 151

Benyi v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 12
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., 2021 WL 1406649
Footnotes
1 The Court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker,
44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
2 The Complaint lists the Broome County Sheriff's Department as a Defendant in this matter. (Dkt. No. 1 at 1.)
As a result, the Clerk of the Court is directed to amend the docket sheet accordingly.
3 The Complaint lists Detective Sergeant Barry Angel as a Defendant in this matter. (Dkt. No. 1 at 1.) As a
result, the Clerk of the Court is directed to amend the docket sheet accordingly.
4 The Complaint lists Deputy Sheriff William Guyyey as a Defendant in this matter. (Dkt. No. 1 at 2.) As a result,
the Clerk of the Court is directed to amend the docket sheet accordingly.
5 Although not set forth by Plaintiff in the Complaint, the Court notes that on January 7, 1991, Plaintiff filed a
pro se civil rights action in the Northern District of New York, No. 6:91-CV-0018 (NPM/GJD) (“Benyi I”). On
February 28, 1997, United States Senior District Judge Neal P. McCurn, granted the defendants’ motion for
summary judgment. (Benyi I, Dkt. No. 163.) In addition, on February 22, 1991, Plaintiff filed a pro se habeas
corpus claim in the Northern District of New York, No. 6:91-CV-0196 (LEK/DH) (“Benyi II”). On September
22, 1994, then-United States Magistrate Judge David N. Hurd issued a report and recommendation, which
recommended that Plaintiff's petition for writ of habeas corpus be denied. (Benyi II, Dkt. No. 37.) On April 17,
1996, United States District Judge Con. G. Cholakis accepted and adopted Magistrate Judge Hurd's report
and recommendation and denied Plaintiff's petition for writ of habeas corpus. (Benyi II, Dkt. No. 43.)
6 Plaintiff uses the term “they” frequently throughout the Complaint. (See generally Dkt. No. 1.) However, it is
unclear to the Court who Plaintiff is referring to.
7 On November 30, 2020, Plaintiff commenced a pro se civil rights action in the District of New Mexico, No.
2:20-CV-1244 (KG/KBM) (“Benyi III”). On January 8, 2021, United States District Judge Kenneth J. Gonzales
dismissed Plaintiff's Complaint. (Benyi III, Dkt. No. 4.)
8 Section § 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a showing of
“imminent danger of serious physical injury,” a prisoner has filed three or more actions 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.
9 The Clerk of the Court is directed to provide Plaintiff with a blank inmate authorization form.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 35 of 151

Benyi v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 13
10 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
11 The Court also notes that Defendant New York Appellate Division “Third Department is also not considered
a ‘person’ for purposes of 42 U.S.C. § 1983.” Dinsio, 2017 WL 3016832, at *12, n.13 (citing Zuckerman,
421 F.2d at 626; Ajamian v. New York, 13-CV-1316, 2014 WL 3928448, at *6 (N.D.N.Y. Aug. 11, 2014)
(D'Agostino, J.) (holding that the Third Department is not a “person” within the meaning of Section 1983)).
12 The Court notes that it has authority to decide this matter despite the fact that it is named as a defendant.
Hansel v. U.S. Supreme Court, Second Circuit Court of Appeals, 141 F.3d 1151 (2d Cir. 1998). Federal
judges are required to disqualify themselves in any proceeding in which their impartiality might reasonably
be questioned. 28 U.S.C. § 455(a). The ultimate inquiry under Section 455(a) is whether a reasonable
person would conclude that the judge's impartiality could reasonably be questioned, and disqualification is
not required on the basis of remote, contingent or speculative interests. United States v. Thompson, 76 F.3d
442, 450 (2d Cir. 1996); United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992). Plaintiff did not sue
any member of this Court in an individual capacity. Here the danger of partiality, if any, is based on remote
and speculative concerns because Plaintiff seeks nothing more than a series of vague declarations and has
alleged no specific wrongdoing by members of this Court. Accordingly, disqualification is not required. In any
event, disqualification is not possible here because it would leave Plaintiff with no judges of this Court to hear
his Complaint. Thus, the rule of necessity applies and this Court may proceed to hear the case. United States
v. Will, 449 U.S. 200 (1980); Atkins v. United States, 214 Ct.Cl. 186 (Ct. Cl. 1977).
13 The Court notes that Plaintiff's Complaint was filed on November 30, 2020. (Dkt. No. 1.) However, pursuant
to the prison mailbox rule, the Court deems Plaintiff's Complaint filed on November 20, 2020, when he gave
it to prison officials. Douglas v. Bughrara, 11-CV-1535, 2013 WL 5347285, at *3 (N.D.N.Y. Sept. 23, 2013)
(Kahn, J.).
14 Although Plaintiff cites to 28 U.S.C. § 1997, there is no such section of the United States Code.
15 Based on the facts alleged, Plaintiff could not proceed with a claim under Title I of the ADA, which addresses
employment discrimination, because he has neither alleged that he was employed by Defendants, nor
alleged that he exhausted administrative remedies by filing a charge with the Equal Employment Opportunity
Commission before pursuing litigation in federal court. 42 U.S.C. § 12117; see Mary Jo C. v. New York
State Local Retirement Sys., 707 F.3d 144, 169 (2d Cir. 2013) (quoting Bd. of Trustees of Univ. of Alabama
v. Garrett, 531 U.S. 356, 360, n.1 (2001)) (“ ‘Title I of the ADA expressly deals with th[e] subject’ of
employment discrimination.”). Moreover, Title IV of the ADA does not appear to be applicable to Plaintiff's
claims because Title IV prohibits disability discrimination in telecommunications. Genco v. Sargent & Collins
LLP, 18-CV-0107, 2018 WL 3827742, at *3, n.5 (W.D.N.Y. June 4, 2018). Finally, Title V of the ADA,
sometimes referred to as the “retaliation provision,” also does not appear applicable because Plaintiff does
not allege that he engaged in activity protected by the ADA, that Defendants were aware of that activity, or any
causal connection between the allegedly adverse actions that Defendant took against him and the protected
activity. Chiesa v. New York State Dep't of Labor, 638 F. Supp. 2d 316, 323 (N.D.N.Y. 2009) (Hurd, J.); see
also Constantine v. Merola, 2020 WL 8450544, at *5 (N.D.N.Y. Nov. 6, 2020) (Lovric, M.J.) (recommending
dismissal of the plaintiff's ADA Title V claims where the complaint failed to allege that the plaintiff “engaged
in any protected activity, that any [d]efendant knew that [p]laintiff was involved in the protected activity, or
that any adverse decision or course of action taken by [d]efendants was causally connected to that protected
activity.”), report and recommendation adopted by 2021 WL 392487 (N.D.N.Y. Feb. 4, 2021) (Hurd, J.).
16 In the alternative, to the extent that Plaintiff attempts to assert ADA Title II claims against Defendants Angel
and Guyyey in their individual capacities, I recommend that those claims be dismissed because “individuals
cannot be held liable under the ADA.” Netti v. Ayers, 17-CV-0976, 2017 WL 7542494, at *18 (N.D.N.Y. Oct.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 36 of 151

Benyi v. New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 14
5, 2017) (Baxter, M.J.) (citing Baross v. Greenlawn, 16-CV-4805, 2017 WL 2124424, at *4 (E.D.N.Y. May
15, 2017)), report and recommendation adopted by 2018 WL 813509 (N.D.N.Y. Feb. 9, 2018) (Suddaby,
C.J.); accord Rosenfield v. New York State Div. of Veterans’ Affairs, 18-CV-1299, 2019 WL 4621962, at *10
(N.D.N.Y. Sept. 24, 2019) (Suddaby, C.J.); see Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d
98, 107 (2d Cir. 2001) (holding that Title II of the ADA does not provide for suits against individuals); Fox v.
State Univ. of N.Y., 497 F. Supp. 2d 446, 449 (E.D.N.Y. 2007) (“[T]here is no individual liability under Title
I or Title II of the ADA, or the ADEA.”); Sutherland v. New York State Dep't of Law, 96-CV-6935, 1999 WL
314186, at *7 (S.D.N.Y. May 19, 1999) (“Individual defendants may not be held personally liable for alleged
violations of the ADA.”).
17 To the extent that Plaintiff intended to assert a Title III claim against Defendants Angel and Guyyey in their
individual capacities, Title III provides a private right of action for injunctive relief but no right of action for
monetary relief. 42 U.S.C. § 12188; see Krist v. Kolombos Rest. Inc., 688 F.3d 89, 94 (2d Cir. 2012) (holding
that Title III of the ADA “authorizes private actions only for injunctive relief, not monetary damages.”); Powell,
364 F.3d at 86 (“Monetary relief ... is not available to private individuals under Title III of the ADA.”); see also
Ervine v. Deser View Reg'l Med. Ctr. Holdings, LLC, 753 F.3d 862, 867 (9th Cir. 2014) (“Damages are not
an available remedy to individuals under Title III of the ADA; individuals may receive only injunctive relief.”).
As a result, those claims should also be dismissed.
18 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.)
(explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)—
that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely
it might be, that an amended complaint would be successful in stating a claim”—is likely not an accurate
recitation of the governing law after Bell Atl. Corp., 550 U.S. at 544.
19 To the extent that Plaintiff seeks monetary damages against Defendants Angel and Guyyey in their individual
capacities pursuant to the ADA I recommend that those claims be dismissed with prejudice and without leave
to amend.
20 If Plaintiff wishes to proceed with this action, he must either (i) pay the $402.00 filing fee, or (ii) submit
a renewed IFP application detailing his current financial condition complete with the required inmate
authorization form, within thirty (30) days from the date of the filing of Court's Decision and Order. Failure to
comply with this directive will result in the issuance of a report and recommendation to the assigned district
judge that the action be dismissed.
21 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).
22 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.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 37 of 151

Bernel v. Korobkova, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 6146600
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Allen BERNEL, Plaintiff,
v.
Yelena KOROBKOVA, et al., Defendants.
No. 21-CV-5106 (KMK)
|
Signed September 19, 2023
Attorneys and Law Firms
Allen Bernel, Fallsburg, NY, Pro se Plaintiff.
Neil Shevlin, Esq., New York State Office of the Attorney
General, New York, NY, Counsel for Defendants Yelena
Korobkova, Diane Hinton, Josh Krom, and William Keyser.
OPINION & ORDER
KENNETH M. KARAS, United States District Judge:
*1 Allen Bernel (“Plaintiff”) brings this Action, pursuant
to 42 U.S.C. § 1983 (“§ 1983”), against Facility Health
Service Director Yelena Korobkova (“Korobkova”), Nurse
John Doe, “Nurse Practice” John Doe, Nurse Katheleen
Buttles (“Buttles”), Nurse Practitioner Ifeoma Awaka
(“Awaka”), Facility Nurse Administrator Diane Hinton
(“Hinton”), Deputy Superintendent Administration Josh
Krom (“Krom”), and Superintendent William F. Keyser
(“Keyser”; Korobkova, Hinton, Keyser, and Krom, together,
“Defendants”), alleging they were deliberately indifferent to
his medical needs. (See generally Am. Compl. (Dkt. No.
16).) 1 Before the Court is Defendants' Motion for Summary
Judgment against Plaintiff for the claims brought in the
Amended Complaint (the “Motion”). (See Decl. in Support of
Mot. (Dkt. No. 47).)
For the reasons stated herein, the Motion is granted.
I. Background
A. Factual Background
The following facts are taken from Defendants' statements
pursuant to Local Civil Rule 56.1. (Rule 56.1 Statement
(“Defs.' 56.1”) (Dkt. No. 49).) Additionally, where
appropriate, the Court cites directly to the admissible
evidence submitted by the Parties. The facts as described
below are in dispute to the extent indicated. 2
*2 Plaintiff is currently incarcerated by the New York
State Department of Corrections and Community Supervision
(“DOCCS”) at Sullivan Correctional Facility (“Sullivan”)
and was incarcerated there during September 2020. (Id. ¶
1.) During the time at issue in this case, Keyser was the
Superintendent of Sullivan, however he has since retired from
DOCCS. (Id. ¶ 2.) Krom is currently employed by DOCCS
as the Deputy Superintendent of Administration at Sullivan,
a position he has held since July of 2018. (Id. ¶ 3.) During
the time at issue in this case, Korobkova was the Facility
Health Services Director at Sullivan; she has since retired
from DOCCS. (Id. ¶ 4.) During the time at issue in this case,
Hinton was the Nurse Administrator at Sullivan; she has since
retired from DOCCS. (Id. ¶ 5.)
Plaintiff's medical records show that on September 10, 2020,
Plaintiff was seen by Buttles complaining of left shoulder pain
as a result of falling on a wet floor. (Id. ¶ 6.) Buttles took
Plaintiff's vital signs and noted that they were normal. (Id.
¶ 7.) Buttles noted that Plaintiff had no swelling or redness
and that there was nothing odd about his appearance. (Id. ¶
8.) Plaintiff was given an analgesic balm and 650 milligrams
of Tylenol. (Id.) Buttles conferred with Awaka, who ordered
Plaintiff an x-ray. (Id. ¶ 9.) Plaintiff testified he saw Buttles
one additional time and that she told him that the pain he was
feeling was not caused by the fall. (Shevlin Decl. Ex. A, at
25:2–11 (Dkt. No. 51-1).)
Following his interaction with Buttles, Plaintiff was seen that
same day by Awaka, who noted that Plaintiff was ambulating
without problem and that there was no redness or swelling.
(Defs.' 56.1 ¶¶ 10–11.) Given the possibility that Plaintiff had
hit his head, “Awaka conducted a neurologic exam, noting
that Plaintiff: (i) was alert and orientated in terms of knowing
who he was, where he was, and what day it was; (ii) denied
having a headache; (iii) presented with normal speech; (iv)
had normal range of motion of all extremities; and (v) had no
observable distress.” (Id. ¶ 12.) The medical entry indicated
that Plaintiff had requested an x-ray of his left back and his
head. (Id. ¶ 13.) The following day, on September 11, 2020,
Plaintiff had an x-ray of his head, left shoulder, arm, and
hand. (Id. ¶ 14.) The x-ray results showed that Plaintiff had
not suffered a fracture to any of those body parts, including
his head. (Id. ¶ 15.) Plaintiff appeared to have a bullet in
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 38 of 151

Bernel v. Korobkova, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
his arm. (Id. ¶ 16.) According to the handwritten note on the
bottom right of the x-ray report, the findings were reviewed
by Korobkova on September 22, 2020. (Id. ¶ 17.) The next
notation in Plaintiff's medical chart is from September 14,
2020, indicating that his medical provider had routinely re-
filled the medications Plaintiff was then taking. (Id. ¶ 18.)
Plaintiff on the other hand, testified that he fell on September
17, 2020. (Shevlin Decl. Ex. A, at 31:24–35:12.) Plaintiff
testified that he tripped on a screw that was raised as he was
exiting a bathroom and hit his hand, head, and shoulder on
his left side and became unconscious. (Id. at 33:2–36:22.)
Plaintiff states that a code blue was called after he fell, (id.
at 51:17–25), that he was then brought in a wheelchair to a
clinic, and seen by Buttles who conducted an examination,
(id. at 39:13–40:5). Plaintiff testified that during his visit with
Buttles, he began to have chest pain and that Buttles gave him
an ice pack and a Band-Aid, and told him if he had more pain
to “come to the window” and “put [in] your sick call.” (Id.
at 40:4–20.) There is no medical entry for September 17,
2020, the date Plaintiff claims he fell, hit his head, and lost
consciousness. (Defs.' 56.1 ¶ 19.) Once Plaintiff returned to
his cell, he woke up in pain, could not get out of bed, and was
told by an officer to put in for a sick call. (Shevlin Decl. Ex.
A, at 47:22–52:22.) Plaintiff testified he “put in for sick call
five times” and that he was given aspirin. (Id. at 52:23.)
*3 According to Plaintiff's medical records, he was next
seen on September 22, 2020, complaining of dizziness and
headache as a result of a “previous fall.” (Defs.' 56.1 ¶ 20.)
The nurse who saw the Plaintiff evaluated him by checking
his orthostatic vital signs, which are evaluated when there
is a possible head injury. (Id. ¶ 21.) This included checking
Plaintiff's oxygen level, heart rate, and blood pressure (in
a lying, standing, and sitting position), all of which were
normal. (Id.) The nurse also noted that there were no signs
or symptoms of acute distress, that Plaintiff's gait was steady,
and that he was alert and orientated as to who he was, where
he was, and what day it was. (Id. ¶ 22.) Immediately following
Plaintiff's evaluation by a nurse, he was seen by Awaka as
well as Korobkova. (Id. ¶ 23.) Awaka noted that Plaintiff's
exam was within normal limits, palpitation of Plaintiff's scalp
by the nurse was negative for bumps, and Plaintiff's range of
motion appeared normal. (Id. ¶ 24.) Overall, it was noted that
Plaintiff “appears well.” (Id.) Plaintiff testified he requested
an MRI from Awaka. (Shevlin Decl. Ex. A, at 26:19–27:2.)
It was further noted in Plaintiff's medical record that
Korobkova explained to Plaintiff that the x-ray results showed
that he had no skull fracture. (Defs.' 56.1 ¶ 25.) Plaintiff was
directed to follow up with medical during his next scheduled
appointment. (Id. ¶ 26.) Plaintiff testified this was the only
time he saw Korobkova. (Shevlin Decl. Ex. A, at 20:25–
21:3.) The record does not indicate that Plaintiff was provided
medication for his headache on September 22, 2020, such
as Tylenol. (Defs.' 56.1 ¶ 27.) However, the dispensing of
Tylenol, an over-the-counter drug, is not always noted in an
incarcerated individual's chart. (Id. ¶ 28.)
According to his medical records, Plaintiff was next seen
two days later, on September 24, 2020, complaining of bad
headaches and requested to see “the Dr. for an MRI.” (Id. ¶
29.) In response, Plaintiff was prescribed 400 milligrams of
ibuprofen two times per day for three days and was scheduled
to see a nurse practitioner on October 1, 2020. (Id. ¶ 30.)
While Plaintiff's next scheduled medical appointment was
October 1, 2020, he was seen by Awaka on September 28,
2020. (Id. ¶ 31.) During that encounter, Plaintiff's pre-existing
Asthma and Hypertension were checked and discussed with
him. (Id. ¶ 32.) His vital signs were taken, which were normal.
(Id.) Plaintiff was counseled to stop smoking and to decrease
his salt intake. (Id. ¶ 33.) In response to Plaintiff's complaint
of headache, neurological and eye exams were performed,
which were normal. (Id. ¶ 34.) Plaintiff was scheduled for
a routine EKG, blood work, and a follow-up appointment.
(Id. ¶ 35.) His medications were renewed. (Id.) In response
to Plaintiff's request to see Korobkova for an MRI, he was
counseled that an MRI was not medically indicated at that
time. (Id. ¶ 36.)
Plaintiff was next seen by a nurse on October 8, 2020,
complaining of head pain. (Id. ¶ 37.) Plaintiff's blood pressure
was taken. (Id. ¶ 38.) In response to Plaintiff pointing behind
his left ear as the source of his pain, the nurse checked
Plaintiff's head and noted that he had no swelling or redness,
no loss of vision or change in vision, and no dizziness. (Id.
¶ 39.) Plaintiff also had no nausea or vomiting. (Id.) Plaintiff
was prescribed 650 milligrams of Tylenol for three days. (Id.
¶ 40.) Plaintiff was next seen by medical staff on October
15, 2020 for a previously scheduled routine EKG due to his
hypertension. (Id. ¶ 41.)
Plaintiff was next seen in the infirmary by a nurse on
December 7, 2020, almost two months later, complaining of
testicle pain. (Id. ¶ 42.) There were no recorded complaints of
chest, neck, shoulder, hand, or head pain/headache. (Id.)
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 39 of 151

Bernel v. Korobkova, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
Plaintiff testified that he did not receive any pain medication
for his head until May 2022. (Shevlin Decl. Ex. A, at
14:2–17:15; 46:10–14.) However, this testimony is directly
contradicted by his Amended Complaint which indicates that
he received pain medication the day he fell, (Am. Compl. ¶
2), and his deposition testimony where he stated he was given
aspirin when he put in for sick call, (Shevlin Decl. Ex. A, at
52:2–25). Specifically, Plaintiff testified that he “put in for
sick call five times... all I did for the five times, aspirin—they
give me an aspirin” and that he asked for “pain medication,”
but was told he could not receive “pain medication” because
the doctor would have to prescribe it. (Id. at 52:23–53:4.)
Plaintiff further testified that he was given aspirin as opposed
to ibuprofen—which required a prescription—but that the
aspirin did not help him. (Id. at 58:8–15.) Plaintiff claims he
was not given ibuprofen until he spoke with Judge McCarthy.
(Id. at 16:9–17:3; 58:16–59:5.)
*4 Plaintiff additionally notes that he requested an MRI from
Hinton by letter and in person. (Id. at 27:7–23.)
On or about September 28, 2020, Plaintiff filed Grievance
SUL-0706-20 (“Grievance”), in which he alleged that he
was not receiving appropriate medical care for complaints
involving persistent headaches, dizziness, and pain in his left
shoulder, neck, and left hand. (Defs.' 56.1 ¶ 43.) Because
Plaintiff's Grievance pertained to medical issues, the Nurse
Administrator, Hinton, was assigned to investigate the claims
and to respond to them. (Id. ¶ 44.) On October 20, 2020,
Hinton responded to the grievance by memorandum stating
that “Inmate's concerns have been addressed. He was seen
9/22, 9/24, 9/28, 10/8 and 10/15.” (Id. ¶ 45.) In reaching this
conclusion, Hinton would have reviewed Plaintiff's medical
record, including his September 11, 2020 x-ray, in order
to formulate her response. (Id. ¶ 46.) Keyser denied the
Grievance on or about October 28, 2020. (Id. ¶ 47.)
Plaintiff states that he “still experience[s] and suffers from
massive headaches, pressure existing behind both eye-balls,
and dizz[ ]iness when lowering [his] head, or bending over to
tie [his] shoe laces, or putting on a pair of socks, or footwear ...
[and] does suffer still and having constant difficulty doing
daily chores, or standing for any lenght [sic] of time.” (Pl.'s
Mem. 7.)
B. Procedural History
Plaintiff commenced the instant Action on June 7, 2021. (See
Compl. (Dkt. No. 2).) Plaintiff filed his Amended Complaint
on November 8, 2021. (See Am. Compl.) Defendants filed
the instant Motion for Summary Judgment on April 25, 2022.
(See Not. of Mot. (Dkt. No. 47); Mem. of Law in Supp. of
Mot. (“Defs.' Mem.”) (Dkt. No. 48).) Plaintiff submitted his
Opposition on February 13, 2023. (See Mem. of Law for
Reply to Mot. (“Pl.'s Mem.”) (Dkt. No. 61).) 3 Defendants
replied on February 28, 2023. (See Reply to Mot. (“Defs.'
Reply Mem.”) (Dkt. No. 62).)
II. Discussion
A. Standard of Review
Summary judgment is appropriate where the movant shows
that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (same); Psihoyos v. John Wiley & Sons, Inc., 748 F.3d
120, 123–24 (2d Cir. 2014) (same). “In deciding whether to
award summary judgment, the court must construe the record
evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor.” Torcivia v.
Suffolk County, 17 F.4th 342, 354 (2d Cir. 2021); see also
Horror Inc. v. Miller, 15 F.4th 232, 240 (2d Cir. 2021) (same).
“It is the movant's burden to show that no genuine factual
dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co.,
373 F.3d 241, 244 (2d Cir. 2004); see also Red Pocket, Inc. v.
Interactive Commc'ns Int'l, Inc., No. 17-CV-5670, 2020 WL
838279, at *4 (S.D.N.Y. Feb. 20, 2020) (same).
*5 “However, when the burden of proof at trial would fall
on the nonmoving party, it ordinarily is sufficient for the
movant to point to a lack of evidence to go to the trier of
fact on an essential element of the non[-]movant's claim,” in
which case “the non[-]moving party must come forward with
admissible evidence sufficient to raise a genuine issue of fact
for trial in order to avoid summary judgment.” CILP Assocs.,
L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d
Cir. 2013) (alteration, citation, and quotation marks omitted).
Further, “[t]o survive a [summary judgment] motion ..., [a
non-movant] need[s] to create more than a ‘metaphysical’
possibility that his allegations were correct; [s]he need[s] to
‘come forward with specific facts showing that there is a
genuine issue for trial,’ ” Wrobel v. County of Erie, 692 F.3d
22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–
87 (1986)), “and cannot rely on the mere allegations or
denials contained in the pleadings,” Guardian Life Ins. Co. v.
Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014) (quotation
marks omitted); see also Wright v. Goord, 554 F.3d 255,
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 40 of 151

Bernel v. Korobkova, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
266 (2d Cir. 2009) (“When a motion for summary judgment
is properly supported by documents or other evidentiary
materials, the party opposing summary judgment may not
merely rest on the allegations or denials of his pleading ....”).
“On a motion for summary judgment, a fact is material if it
might affect the outcome of the suit under the governing law.”
Royal Crown Day Care LLC v. Dep't of Health & Mental
Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quotation marks
omitted). At this stage, “[t]he role of the court is not to resolve
disputed issues of fact but to assess whether there are any
factual issues to be tried.” Brod v. Omya, Inc., 653 F.3d 156,
164 (2d Cir. 2011) (citation omitted). Thus, a court's goal
should be “to isolate and dispose of factually unsupported
claims.” Geneva Pharms. Tech. Corp. v. Barr Laby's. Inc., 386
F.3d 485, 495 (2d Cir. 2004) (quoting Celotex, 477 U.S. at
323–24).
When ruling on a motion for summary judgment, a district
court should consider only evidence that would be admissible
at trial. See Nora Beverages, Inc. v. Perrier Grp. of Am.,
Inc., 164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party
relies on affidavits or deposition testimony to establish facts,
the statements ‘must be made on personal knowledge, set
out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the
matters stated.’ ” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir.
2012) (quoting Fed. R. Civ. P. 56(c)(4)); see also Sellers v.
M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988)
(“Rule 56 requires a motion for summary judgment to be
supported with affidavits based on personal knowledge ....”);
Baity v. Kralik, 51 F. Supp. 3d 414, 419 (S.D.N.Y. 2014)
(disregarding “statements not based on [the] [p]laintiff's
personal knowledge”); Flaherty v. Filardi, No. 03-CV-2167,
2007 WL 163112, at *5 (S.D.N.Y. Jan. 24, 2007) (“The
test for admissibility is whether a reasonable trier of fact
could believe the witness had personal knowledge.” (citation
omitted)).
Finally, the Second Circuit has instructed that when a
court considers a motion for summary judgment, “special
solicitude” should be afforded a pro se litigant, see Graham,
848 F.2d at 344; accord Mercado v. Div. of N.Y. State Police,
No. 96-CV-235, 2001 WL 563741, at *7 (S.D.N.Y. May 24,
2001) (same), and a court should construe “the submissions
of a pro se litigant ... liberally” and interpret them “to raise
the strongest arguments that they suggest,” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (italics
and quotation marks omitted). Moreover, “the failure to
oppose a motion for summary judgment alone does not justify
the granting of summary judgment.” Vt. Teddy Bear Co., 373
F.3d at 244; see also Jackson v. Fed. Exp., 766 F.3d 189, 196
(2d Cir. 2014) (explaining that “an examination of the legal
validity of an entry of summary judgment should ... be[ ]made
in light of the opposing party's pro se status” (italics omitted)).
“Nonetheless, proceeding pro se does not otherwise relieve a
litigant of the usual requirements of summary judgment, and
a pro se party's bald assertions unsupported by evidence ... are
insufficient to overcome a motion for summary judgment.”
Houston, 27 F. Supp. 3d at 351 (alterations, italics, and
quotation marks omitted); see also Flores v. City of New York,
No. 15-CV-2903, 2017 WL 3263147, at *2 (S.D.N.Y. July 31,
2017) (same).
B. Analysis
*6 Plaintiff asserts that following his fall on September
17, 2020, he suffered a host of medical problems including
chronic pain in his head, left hand, neck, back, and chest. (See
generally Am. Compl.; Pl.’s Mem. 7.) According to Plaintiff,
he has been refused an MRI and a specialty visit, and was
denied pain medication until May 2022. (See Shevlin Decl.
Ex. A, at 13:18–15:7; 58:8–15; Pl.’s Mem. 4.) Because of
the alleged deliberate indifference of the Defendants, Plaintiff
argues he continues to suffer pain to this day, over two years
after his September 2020 fall. (Pl.’s Mem. 4.)
“The Eighth Amendment forbids ‘deliberate indifference to
serious medical needs of prisoners ....’ ” Spavone v. N.Y.
State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)
(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). To state
a claim of deliberate indifference, Plaintiff must plausibly
allege (1) “that he suffered a sufficiently serious constitutional
deprivation,” and (2) that Defendants “acted with deliberate
indifference.” Feliciano v. Anderson, No. 15-CV-4106, 2017
WL 1189747, at *8 (S.D.N.Y. Mar. 30, 2017) (citations
omitted).
“The first requirement is objective: the alleged deprivation of
adequate medical care must be sufficiently serious.” Spavone,
719 F.3d at 138 (citation and quotation marks omitted). In
other words, “the 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) (citations omitted). Analyzing this
objective requirement involves two inquiries: “whether the
prisoner was actually deprived of adequate medical care,”
Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006),
and “whether the inadequacy in medical care is sufficiently
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 41 of 151

Bernel v. Korobkova, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
serious,” which in turn “requires the [C]ourt to examine how
the offending conduct is inadequate and what harm, if any,
the inadequacy has caused or will likely cause the prisoner,”
id. at 280 (citation omitted). “There is no settled, precise
metric to guide a court in its estimation of the seriousness
of a prisoner's medical condition.” Brock v. Wright, 315 F.3d
158, 162 (2d Cir. 2003). Nevertheless, the Second Circuit
has suggested the following non-exhaustive list of factors
to consider when evaluating an inmate's medical condition:
“(1) whether a reasonable doctor or patient would perceive
the medical need in question as ‘important and worthy of
comment or treatment,’ (2) whether the medical condition
significantly affects daily activities, and (3) ‘the existence
of chronic and substantial pain.’ ” Id. (quoting Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).
“The second requirement is subjective: the charged officials
must be subjectively reckless in their denial of medical care.”
Spavone, 719 F.3d at 138. This means that Defendants must
“appreciate the risk to which a prisoner was subjected,” and
have a “subjective awareness of the harmfulness associated
with those conditions.” Darnell v. Pineiro, 849 F.3d 17, 35
(2d Cir. 2017); see also Nielsen v. Rabin, 746 F.3d 58, 63
(2d Cir. 2014) (“Deliberate indifference is a mental state
equivalent to subjective recklessness,” and it “requires that
the charged official act or fail to act while actually aware of a
substantial risk that serious inmate harm will result.” (citation
and quotation marks omitted)). A defendant's awareness of
the risk of serious harm can be established through “inference
from circumstantial evidence,” including “from the very fact
that the risk was obvious.” Farmer v. Brennan, 511 U.S. 825,
842 (1994). However, “mere negligence” is insufficient to
state a claim for deliberate indifference. Walker, 717 F.3d at
125 (citation and quotation marks omitted).
*7 “It is well-established that mere disagreement over the
proper treatment does not create a constitutional claim.”
Chance, 143 F.3d at 703. “A medical decision not to order an
X-ray[ ] or like measures” “is a classic example of a matter for
medical judgment” that “does not represent cruel and unusual
punishment.” Estelle, 429 U.S. at 107; see also Stephens v.
Ruiz, No. 20-CV-1450, 2021 WL 371578, at *4 (D. Conn.
Feb. 3, 2021) (“[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 Section 1983 claim” (citation
omitted)). In this case, the evidence demonstrates that
Plaintiff was repeatedly evaluated by medical staff, during
which he was given neurological and other examinations
and an x-ray, and that it was ultimately determined that an
MRI was not medically necessary. (Defs.' 56.1 ¶¶ 6–40.) For
example, Plaintiff's medical records indicate he was examined
by medical staff on September 10, 2020 (by both Buttles
and Awaka), September 22, 2020 (by a nurse and then by
Awaka and Korobkova), September 24, 2020, September
28, 2020 (by Awaka), and October 8, 2020. (Id.) During
those examinations, medical staff conducted neurological
examinations, checked Plaintiff's vital signs, and physically
checked the areas he complained about, examinations all of
which were determined to be normal. (Id.) And the x-ray
of his left shoulder, arm, hand, and his head indicated that
he did not suffer any fractures as a result of his fall. (Id.
¶ 15.) While Plaintiff may disagree on the date he fell and
subsequently received treatment, he does not contest that
he was seen repeatedly by medical professionals, received
an x-ray, multiple physical examinations, and aspirin. (See
generally Shevlin Decl. Ex. A.)
Accordingly, Plaintiff clearly received medical treatment
and the decision not to order an MRI or refer him to a
specialist, which can only be described as a disagreement
regarding proper treatment, cannot constitute deliberate
indifference to medical needs. See Robbs v. McCrystal, No.
20-CV-1584, 2023 WL 2526533, at *12 (D. Conn. Mar.
15, 2023) (“[M]edical decisions, such as whether to order
x-rays, MRIs, or other diagnostic tests do not generally
implicate the Eighth Amendment's prohibition against cruel
and unusual punishment.”); Youmans v. City of N.Y., 14 F.
Supp. 3d 357, 363–64 (S.D.N.Y. 2014) (holding that failure
to provide an MRI or CT scan and a second opinion fails
to satisfactorily plead deliberate indifference); Gumbs v.
Dynan, No. 11-CV-857, 2012 WL 3705009, at *14 (E.D.N.Y.
Aug. 26, 2012) (“[A] medical judgment is not deliberate
indifference just because it is not the inmate's preferred
course of treatment. Whether to order an MRI or similar
diagnostic treatments is a classic example of a matter for
medical judgment, and where the treatment provided is
responsive to the prisoner's condition, ... the fact that a
prisoner might prefer different treatment does not give rise
to a Constitutional violation.” (second alteration in original)
(citation and quotation marks omitted)); Ferrera v. Fisher,
No. 06-CV-1158, 2008 WL 4443920, at *14 (S.D.N.Y.
Sept. 30, 2008) (holding no deliberate indifference where
the plaintiff had not “provided evidentiary support for his
conclusory statements that he is a good candidate for surgery,
that additional specialists referrals were warranted or that
the various tests performed and treatments prescribed did
not constitute adequate treatment”); Fulmore v. Mamis, No.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 42 of 151

Bernel v. Korobkova, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 6
00-CV-2831, 2001 WL 417119, at *8–9 & n. 26 (S.D.N.Y.
Apr. 23, 2001) (holding that a physician's failure to order
CAT scan reflected, “at most, ... a difference in opinion as
to [prisoner's] medical treatment rather than any deliberate
indifference to [the prisoner's] medical needs”); see also
Smalls v. Wright, 807 F. App'x 124, 126 (2d Cir. 2020)
(summary order) (concluding that a defendant's “decisions
not to order an MRI and not to refer [the plaintiff] to a
specialist constitute matters of medical judgment that do not
give rise to an Eighth Amendment violation”); Riddick v.
Maurer, 730 F. App'x 34, 37–38 (2d Cir. 2018) (summary
order) (affirming denial of injunctive relief based on the
inmate-plaintiff's claims concerning denials of MRIs, x-
rays, and a new mattress because they constituted “mere
disagreements over treatment”). Indeed, “[t]he fact that a
prisoner might prefer different treatment does not give rise to
an Eighth Amendment violation.” Chance, 143 F.3d at 703.
Additionally, Plaintiff's assertion that he was not given
pain medication until May 2022 is conclusively belied
by his medical records, which demonstrate that he was
given an analgesic balm and was repeatedly given Tylenol
and ibuprofen, and his own testimony which indicates he
was provided aspirin. (Defs.' 56.1 ¶¶ 8, 30, 40; Shevlin
Decl. Ex. A, at 52:2–25.) Plainly, “[t]hese records are fatal
to Plaintiff's factual allegation.” Johnson v. Kitt, No. 15-
CV-7823, 2021 WL 1105438, at *8 (S.D.N.Y. Mar. 23,
2021). “When opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling
on a motion for summary judgment.” Scott v. Harris, 550
U.S. 372, 380 (2007). The detailed and consistent story
told by the medical records—“uncontroverted documentary
evidence, made contemporaneous to the events[—]wholly
undermines Plaintiff's unsupported contentions and is fatal
to [his] ... claim.” Todd v. N.Y.C. Health & Hosps. Corp.,
No. 16-CV-2124, 2021 WL 4463214, at *4 (E.D.N.Y.
Sept. 29, 2021); see also Vega v. Rell, 611 F. App'x 22,
25–26 (2d Cir. 2015) (summary order) (affirming grant
of summary judgment related to a prisoner's deliberate-
indifference-to-medical-needs claim where the prisoner's
account in his affidavit was “undercut” by “uncontroverted
medical records”); Jordan v. Fischer, 773 F. Supp. 2d 255,
262 (N.D.N.Y. 2011) (granting summary judgment where
the plaintiff's “allegations and the underlying record betray
the merits of his deliberate indifference claim against [a
defendant]”); Headley v. Fisher, No. 06-CV-6331, 2010
WL 2595091, at *4 (S.D.N.Y. June 28, 2010) (holding
that “[c]ontemporaneous [l]ogbook entries eliminate[d] any
genuine issue of material fact that [the plaintiff] was not
deprived of opportunities to shower and go to recreation
while under keep-lock status”); Gaston v. Coughlin, No.
98-CV-6016, 2005 WL 1177869, at *13 (W.D.N.Y. May
18, 2005) (holding that the plaintiff's “bald, conclusory
statement[s]” that were contradicted by evidence in a prison's
“[a]ctivity [l]og” were “insufficient to defeat summary
judgment”). Moreover, Plaintiff has not made a “blanket
denial of the accuracy of medical records,” Aouatif v.
City of N.Y., No. 07-CV-1302, 2019 WL 2410450, at *8
(E.D.N.Y. May 31, 2019), aff'd, 811 F. App'x 711 (2d Cir.
2020) (summary order), nor does Plaintiff “speculat[e] that
[Defendants] had somehow doctored [P]laintiff's medical
records,” Farid v. Ellen, No. 01-CV-8292, 2006 WL 59517,
at *11 (S.D.N.Y. Jan. 11, 2006), aff'd, 593 F.3d 233 (2d Cir.
2010), even if such either course of action is insufficient to
withstand a motion for summary judgment, see Aouatif, 2019
WL 2410450, at *8; Farid, 2006 WL 59517, at *11.
*8 Moreover, even taking Plaintiff's facts as true, namely
that he was provided aspirin and not ibuprofen, “[t]he decision
to prescribe one form of pain medication in place of another
does not constitute deliberate indifference to a prisoner's
serious medical needs.” Rush v. Fischer, No. 09-CV-9918,
2011 WL 6747392, at *3 (S.D.N.Y. Dec. 23, 2011) (collecting
cases). Accordingly, insofar as Plaintiff claims that he did not
receive the pain medication of his choice, his claim cannot
survive. See Hill v. Curcione, 657 F.3d 116, 123 (2d Cir.
2011) (holding prisoner's claim that Motrin medication was
insufficient and that stronger pain medication was required
for his wrist injuries did not state a deliberate indifference
claim); Neira v. Cnty. of Nassau, No. 13-CV-07271, 2022 WL
4586045, at *18 (E.D.N.Y. Sept. 29, 2022) (“Plaintiff's claim
that medical staff should have given him stronger medication
than Tylenol and Motrin for his pain does not demonstrate
that [medical] personnel were deliberately indifferent to his
medical condition.”); Williams v. Williams, No. 13-CV-3154,
2015 WL 568842, at *5 (S.D.N.Y. Feb. 11, 2015) (noting
that “courts have repeatedly declined to find that a medical
provider was deliberately indifferent to an inmate's medical
needs” where a plaintiff challenges “the type and quantity
of pain medication”); Harris v. Westchester Cnty. Med. Ctr.,
No. 08-CV-1128, 2011 WL 2637429, at *3 (S.D.N.Y. July 6,
2011) (“The failure to provide stronger pain medication does
not constitute deliberate indifference.”); Wright v. Genovese,
694 F. Supp. 2d 137, 160 (N.D.N.Y. 2010) (“Differences
in opinions between a doctor and an inmate patient as to
the appropriate pain medication clearly do not support a
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 43 of 151

Bernel v. Korobkova, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 7
claim that the doctor was deliberately indifferent to the
inmate's ‘serious’ medical needs.”); Veloz v. New York, 339
F. Supp. 2d 505, 525 (S.D.N.Y. 2004) (holding that medical
providers' decision not to prescribe stronger pain medication
than Tylenol to address prisoner's back condition did not state
a claim for deliberate indifference). 4
Accordingly, Plaintiff's deliberate indifference to medical
needs claim cannot stand.
III. Conclusion
For the foregoing reasons, Defendants' Motion is granted. 5
The Clerk of Court is respectfully directed to terminate
the pending Motion, (Dkt. No. 47), enter judgment for
Defendants, mail a copy of this Opinion & Order to Plaintiff
at the address listed on the docket, and close this case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 6146600
Footnotes
1 Plaintiff spells Korobkova, “Korabova” and Krom, “Korn” in his Amended Complaint. (See generally Am.
Compl.) Defendants Buttles and Awaka do not appear to have been served in this Action. (See generally Dkt.)
2 Local Civil Rule 56.1(a) requires the moving party to submit a “short and concise statement, in numbered
paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.”
Local Civ. R. 56.1(a). The nonmoving party, in turn, must submit “a correspondingly numbered paragraph
responding to each numbered paragraph in the statement of the moving party, and if necessary, additional
paragraphs containing a separate, short[,] and concise statement of additional material facts as to which it is
contended that there exists a genuine issue to be tried.” Id. at 56.1(b). “If the opposing party fails to controvert
a fact set forth in the movant's Rule 56.1 statement, that fact will be deemed admitted pursuant to the local
rule.” Baity v. Kralik, 51 F. Supp. 3d 414, 418 (S.D.N.Y. 2014) (citation and quotation marks omitted); see
also T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (same). “A pro se litigant is not excused
from this rule.” Brandever v. Port Imperial Ferry Corp., No. 13-CV-2813, 2014 WL 1053774, at *3 (S.D.N.Y.
Mar. 13, 2014) (italics omitted).
Here, Defendants filed and served their statement pursuant to Rule 56.1, (see Defs.' 56.1), in addition to
the requisite statement notifying Plaintiff of the potential consequences of not responding to the Motion as
required by Local Rule 56.2, (see Not. to Pro Se Litigant (Dkt. No. 50)). Despite this notice, Plaintiff failed
to submit a response to Defendants' 56.1 Statement of Facts. (See generally Dkt.) Accordingly, the Court
may conclude that the facts in Defendants' 56.1 Statement are uncontested and admissible. See Brandever,
2014 WL 1053774, at *3 (concluding that because the pro se plaintiff did not submit a Rule 56.1 statement in
response to the defendant's statement of facts, “there [were] no material issues of fact”); Anand v. N.Y. State
Div. of Hous. & Cmty. Renewal, No. 11-CV-9616, 2013 WL 4757837, at *7 (S.D.N.Y. Aug. 29, 2013) (same).
Nevertheless, in light of the “special solicitude” afforded to pro se litigants “when confronted with motions for
summary judgment,” Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988), the Court will “in its discretion
opt to conduct an assiduous review of the record” when deciding the instant Motion, Holtz v. Rockefeller &
Co., 258 F.3d 62, 73 (2d Cir. 2001) (citation and quotation marks omitted). See also Houston v. Teamsters
Local 210, Affiliated Health & Ins. Fund–Vacation Fringe Ben. Fund, 27 F. Supp. 3d 346, 349 (E.D.N.Y. 2014)
(“Although [the] plaintiffs did not file a Rule 56.1 statement, the Court has independently reviewed the record
to ensure that there is uncontroverted evidence to support the paragraphs referenced in [the] defendants'
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 44 of 151

Bernel v. Korobkova, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 8
Rule 56.1.”); Pagan v. Corr. Med. Servs., No. 11-CV-1357, 2013 WL 5425587, at *2 (S.D.N.Y. Sept. 27, 2013)
(explaining that “[t]he [c]ourt ha[d] considered the [motions for summary judgment] in light of the entirety of the
record to afford [the pro se] [p]laintiff the special solicitude to which he [was] entitled” where the plaintiff failed
to submit a Rule 56.1 response); Cherry v. Byram Hills Cent. Sch. Dist., No. 11-CV-3872, 2013 WL 2922483,
at *1 (S.D.N.Y. June 14, 2013) (italics omitted) (“[W]here a pro se plaintiff fails to submit a proper ... Rule
56.1 statement in opposition to a summary judgment motion, the [c]ourt retains some discretion to consider
the substance of the plaintiff's arguments, where actually supported by evidentiary submissions.” (citation
and quotation marks omitted)).
3 The Court notes that while Plaintiff's motion is labeled as an opposition, Plaintiff also appears to be requesting
summary judgment at some points in his motion. (See generally Pl.’s Mem.)
4 Plaintiff additionally appears to be claiming that Hinton and Krom “did not want any staff being taken off their
security posts, for a minor accident by the [P]laintiff.” (Pl.’s Mem. 8.) Plaintiff does not explain how this resulted
in any deliberate indifference to his medical needs, namely any deprivation of medical care. Plaintiff also
claims the decisions made on the day of his slip and fall were not based on an assessment of his condition
but instead “based on someone's failure to complete a form.” (Pl.’s Mem. 9.) Plaintiff has not explained what
form he refers to or how such a failure resulted in any deliberate indifference to his medical needs.
5 The deliberate indifference to medical needs claims against the unserved Defendants Buttles and Awaka,
which suffer from the same deficiencies, are dismissed as well. See Garcia v. City of N.Y., No. 15-CV-7470,
2017 WL 1169640, at *1 n.1 (S.D.N.Y. Mar. 28, 2017) (“Although Rojas and Larson have yet to be served,
because Plaintiffs' claims against them are the same as the claims against Ovando and Smyth and suffer
from the same deficiencies, the Court will treat the instant motion as if it were brought on behalf of all
Defendants.”); Johnson v. N.Y.C., No. 12-CV-4379, 2013 WL 950870, at *3 (S.D.N.Y. Mar. 7, 2013) (“As
the same conviction underlies plaintiff's claims against defendant Thomas Woods (who has not yet been
served in this action), the Court dismisses the Complaint with respect to Woods sua sponte.” (emphasis in
the original)); Hamilton v. Broomfield, No. 95-CV-3241, 1998 WL 17697, at *1 n.1 (S.D.N.Y. Jan. 20, 1998)
(dismissing claims against unserved defendants because they were identical to claims against defendants
who filed the motion to dismiss).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 45 of 151

Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2007 WL 607341
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Paul CIPRIANI, Plaintiff,
v.
Harry C. BUFFARDI, Sheriff; Schenectady County Jail;
Cheryl Clark, M.D.; Kevin J. O'Connor, Defendants.
No. 9:06-CV-0889(LEK/DRH).
|
Feb. 20, 2007.
Attorneys and Law Firms
Paul Cipriani, Plaintiff, pro se.
DECISION and ORDER
LAWRENCE E. KAHN, U.S. District Judge.
*1 Presently before the Court is an amended complaint
filed by Plaintiff Paul Cipriani (“Plaintiff”). Amended Compl.
(Dkt. No. 10). This amended complaint was submitted
in compliance with the Memorandum-Decision and Order
issued by this Court on November 27, 2006 (“November
Order”). Mem.-Decision and Order (Dkt. No. 7).
In its November Order, the Court advised plaintiff that he
must set forth facts demonstrating that Defendants were
personally involved in a violation of Plaintiff's rights. Id. at 4.
Plaintiff was also advised that in order to establish the liability
of a municipality, he must allege a custom or policy which is
the moving force behind the violation. Id.
In his amended complaint, Plaintiff names thirteen defendants
and asserts numerous claims against them arising from his
confinement at Schenectady County Jail. Amended Compl.
(Dkt. No. 10).
The Court notes that plaintiff has not named “Schenectady
County Jail,” “Cheryl Clark,” or “Kevin J. O'Connor” in
his amended Complaint. Therefore, “Schenectady County
Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are hereby
dismissed as defendants in this action.
The Court also notes that Plaintiff's amended Complaint
mentions “Mr. Booth” and “Mr. Purdy” only in the caption,
and fails to allege any act or omission by these individuals.
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. Gonzalez v. City of New
York, No. 97 CIV. 2246(MGC), 1998 WL 382055, at *2
(S.D.N.Y. July 9, 1998) (citing Crown v. Wagenstein, No. 96
CIV. 3895(MGC), 1998 WL 118169, at *1 (S.D.N.Y.Mar.16,
1998) (mere inclusion of warden's name in complaint
insufficient to allege personal involvement) and Taylor v. City
of New York, 953 F.Supp. 95, 99 (S.D.N.Y.1997)). Because
plaintiff has failed to allege any personal involvement on the
part of defendants “Mr. Booth” and “Mr. Purdy”, they are
hereby dismissed as defendants in this action.
In his amended Complaint, Plaintiff alleges that the remaining
Defendants committed various violations of his constitutional
rights, including inadequate medical care, breach of doctor-
patient confidentiality, excessive force, denial of due process
in a disciplinary proceeding, and interference with the
grievance process. Amended Compl. (Dkt. No. 10).
Based on the foregoing, Plaintiff's amended complaint as
against the remaining Defendants is accepted for filing.
Plaintiff is advised, however, that the U.S. Marshals cannot
effect service on a “John Doe” defendant. In the event
that plaintiff wishes to pursue this claim against the “John
Doe” defendants named in the amended Complaint, he must
take reasonable steps to ascertain their identities. Plaintiff
may then file a Motion to amend his complaint and seek
leave of the Court to add such individuals, by name, as
defendants to this lawsuit. Plaintiff is further advised that if
these individuals are not timely served, the action will be
against them will be dismissed.
*2 WHEREFORE, it is hereby
ORDERED, that “Mr. Booth,” “Mr. Purdy,” “Schenectady
County Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are
DISMISSED as defendants in this action, and it is further
ORDERED, that the Clerk revise the docket to add
“Schenectady County,” “Mr. Burns,” “Mr. Jones,” “Mr.
Adams,” “Ms. Jones,” “Ms. Hull,” “John Doe # 1,” “John Doe
# 7,” “John Doe # 10,” and “Loraine Walker” as defendants
in this action, and it is further
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 46 of 151

Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
ORDERED, that the Clerk issue summonses naming the
remaining defendants and forward them, along with copies of
the amended Complaint (Dkt. No. 10), to the United States
Marshal for service upon the defendants, together with a copy
of this Order. 1 The Clerk shall also forward a copy of the
summons and amended Complaint by mail to the County
Attorney for Schenectady County, together with a copy of this
Order, and it is further
ORDERED, that a formal response to Plaintiff's amended
Complaint be filed by Defendants or their counsel as provided
for in Rule 12 of the Federal Rules of Civil Procedure
subsequent to service of process on Defendants, and it is
further
ORDERED, that Plaintiff take reasonable steps to ascertain
the identities of any other individual(s) that purportedly
violated Plaintiff's civil and/or constitutional rights and, if
appropriate, file a Motion to amend his complaint and add
such individuals, by name, as defendants to this lawsuit, 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 it was mailed to all 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 returned, without processing. Plaintiff must
comply with 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, which must be returnable before the
assigned Magistrate Judge with proper allowance for notice as
required by the Rules. Plaintiff is also required to promptly
notify the Clerk's Office and all parties or their counsel of
any change in his address; his failure to do so will result
in the dismissal of this action. All motions will be decided
on submitted papers without oral argument unless otherwise
ordered by the Court; and it is further
ORDERED, that the Clerk serve a copy of this Order on
plaintiff by regular mail.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2007 WL 607341
Footnotes
1 Plaintiff was granted leave to proceed with this action in forma pauperis. Mem.-Decision and Order (Dkt.
No. 7).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 47 of 151

Duva v. Riverhead Correctional Facility Medical Dep., Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Declined to Follow by Public Administrator of County of Nassau v. County
of Nassau, E.D.N.Y., March 21, 2024
2019 WL 5537250
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Nicholas DUVA, Plaintiff,
v.
RIVERHEAD CORRECTIONAL
FACILITY MEDICAL DEP., Defendant.
19-CV-1429(JS)(AYS)
|
Signed 10/25/2019
Attorneys and Law Firms
For Plaintiff: Nicholas Duva, pro se, 585872, Suffolk County
Correctional Facility, 110 Center Drive, Riverhead, New York
11901.
For Defendant: Arlene S. Zwilling, Esq., Suffolk County
Attorney, H. Lee Dennison Building-Fifth Floor, 100 Veterans
Memorial Highway, P.O. Box 6100, Hauppauge, New York
11788-0099.
MEMORANDUM & ORDER
SEYBERT, District Judge:
*1 Pro se plaintiff Nicholas Duva (“Plaintiff” or “Duva”)
brings this action against defendant Riverhead Correctional
Facility Medical Department (“Defendant” or “Riverhead”)
pursuant to 42 U.S.C. § 1983 (“Section 1983”), alleging
that his constitutional rights were violated due to improper
medical care he received as an inmate. (Compl., D.E. 1.)
Defendant moves to dismiss the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). (Mot., D.E. 19.)
For the following reasons, Defendant's motion is GRANTED
and the Complaint is DISMISSED WITHOUT PREJUDICE
AND WITH LEAVE TO REPLEAD.
BACKGROUND
The following facts are presumed to be true for purposes
of this motion. Plaintiff, who is incarcerated at Suffolk
County Correctional Facility in Riverhead, “was overdosed
on a serious medication (methadone)” “sometime in October
2018” “around 6:45 p.m.” (Compl. ¶¶ 2, 3.) At that time,
Plaintiff was “get[ting] 80 mg [of methadone] and was given
230 mg, almost trip[ ]le [his] dose which led [him] to overdose
and be taken to the ER.” (Compl. ¶ 2.) In February 2019,
Plaintiff was still experiencing “severe medical damage, and
illness along with mental anxiety, emotionally disturbed,
sleepless and fearful.” (Compl. ¶ 3.)
Plaintiff attached a copy of his Inmate Grievance Form, dated
February 10, 2019, to the Complaint. 1 (Compl. at ECF p. 3.)
His grievance was denied because it was submitted five days
beyond the occurrence. The grievance coordinator also noted
that “Inmate Duva is receiving his mediation as prescribed by
his providers.” (Compl. at ECF p. 3.)
Plaintiff commenced this action by filing a “Notice of
Intention to File a Claim” with this Court which, given his
pro se status, is liberally construed as a Complaint brought
pursuant to Section 1983. 2 Defendant moves to dismiss the
Complaint, arguing that Plaintiff has not alleged deliberate
indifference to his serious medical needs. (Def. Br., D.E. 19-1,
at 1-2.) In his brief opposition to the motion, Plaintiff states
that “in this incident [he] was overdosed because [of] reckless
behavior by the medical department.” (Pl. Opp., D.E. 28.)
DISCUSSION
I. Motion to Dismiss
To survive a motion to dismiss, a complaint must plead
“enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S. Ct. 1955, 1974 (2007). A claim is plausible “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, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
A complaint filed by a pro se litigant is to be construed
liberally and “however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct.
2197, 2200, 167 L. Ed. 2d 1081 (2007). Nevertheless, a pro se
complaint must state a plausible claim for relief and comply
with the minimal pleading standards set forth in Federal
Rule of Civil Procedure 8. Vallen v. Plan, No. 15-CV-0703,
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 48 of 151

Duva v. Riverhead Correctional Facility Medical Dep., Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
2017 WL 627415, at *2 (E.D.N.Y. Feb. 14, 2017) (citing
Hiller v. Farmington Police Dep't, No. 12-CV-1139, 2015 WL
4619624, at *7 (D. Conn. July 31, 2015)).
II. Deliberate Indifference to Medical Needs
*2 A prisoner's claim for “alleg[ations] that he was
improperly medicated and denied appropriate medical
attention to treat his injuries” is construed as a “violation
of his Eighth Amendment right to be free from cruel and
unusual punishment.” Varricchio v. Cty. of Nassau, 702 F.
Supp. 2d 40, 53 (E.D.N.Y. 2010). “ ‘Because the Eighth
Amendment is not a vehicle for bringing medical malpractice
claims, nor a substitute for state tort law, not every lapse in
prison medical care will rise to the level of a constitutional
violation.’ ” Langer v. Buerkle, No. 15-CV-0668, 2019 WL
3753796, at *4 (E.D.N.Y. Aug. 8, 2019) (quoting Smith v.
Carpenter, 316 F. 3d 178, 184 (2d Cir. 2003)). “To show
that prison medical treatment was so inadequate as to amount
to ‘cruel or unusual punishment’ prohibited by the Eighth
Amendment, [a] plaintiff must prove that [a] defendant[’s]
actions or omissions amounted to ‘deliberate indifference to a
serious medical need.’ ” Abdur-Raqiyb v. Erie Cty. Med. Ctr.,
536 F. Supp. 2d 299, 301 (W.D.N.Y. 2008) (quoting Estelle
v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251
(1976)).
“A medication error alone, as to either the type or dose
of medication, is not deliberate indifference. It is, at most,
medical malpractice, which is not actionable under § 1983.”
Pyle v. Robin Sims, No. 15-CV-5245, 2017 WL 663518,
at *6 (W.D. Ark. Jan. 30, 2017), R&R adopted 2017 WL
662991 (collecting cases). In order to state a constitutional
claim, a plaintiff must allege that a defendant administered
an overdose of a drug “with the requisite intent to cause him
pain or physical harm, or with culpable recklessness, i.e., an
act or a failure to act that evinces a conscious disregard of
a substantial risk of serious harm.” Abdur-Raqiyb, 536 F.
Supp. at 302 (internal quotation marks, alteration, and citation
omitted) (collecting cases).
III. Application
A. Allegations
Plaintiff alleges that Defendant's employee recklessly,
not “mere[ly] negligent[ly,]” administered him too much
methadone. (Pl. Opp.; see also generally Compl.) This
caused him to suffer “severe medical damage” that allegedly
continued for several months after the overdose. (Compl.
¶ 3.) In his opposition, Plaintiff argues that “between what
happen[ed] and also the hospital records at Peconic Bay
in Riverhead ... [he believes he can] prove the medical
dep[artment] did in fact act reckless.” (Opp.) However, the
Complaint itself does not sufficiently allege a constitutional
violation. Plaintiff has alleged only one dosage error. See
Stasicky v. S. Woods State Prison, No. 03-CV-0369, 2007
WL 1723467, at *9 (D.N.J. June 12, 2007) (“even if the
Court were to assume Plaintiff's allegation that [the doctor]
‘doubled’ his medication [on one occasion], that allegation
does not rise to more than negligence”). And his conclusory
claim (found in his Opposition, and not in the Complaint
itself) that the employee(s) acted “reckless” is not sufficient
to show the conscious disregard necessary for a constitutional
violation.
Further, Plaintiff states in the Complaint that after the
overdose, he was taken to the emergency room. Thus, the
medical staff treated him upon discovering the error. Cf.
Varricchio, 702 F. Supp. 2d at 57-59 (motion to dismiss
denied where Plaintiff alleged he was improperly medicated
on two occasions, requested to go to the hospital but staff
waited several days to bring him to the medical unit, and
was found lying face down in his cell with a heartrate of 15
beats per minute; and that the improper dosage was due to a
County policy of not properly labeling inmate medications);
Barnett v. Luttrell, 414 F. App'x 784, 788 (6th Cir. 2011)
(no constitutional violation where nurse administered inmate
anti-seizure medication instead of ibuprofen (as prescribed),
but her abandoning him and failing to treat him after he fell
due to the anti-seizure medication was actionable).
B. The Defendant
*3 Additionally, Plaintiff's Section 1983 claim against
Defendant is not plausible because Defendant does not
have an independent legal identity. “[D]epartments that are
merely administrative arms of a municipality do not have a
legal identity separate and apart from the municipality and,
therefore, cannot sue or be sued.” Davis v. Lynbrook Police
Dep't, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002); Trahan v.
Suffolk Cty. Corr. Fac., No. 12-CV-4353, 2012 WL 5904730,
*3 (E.D.N.Y. Nov. 26, 2012) (dismissing claims against the
Suffolk County Jail because it “is an administrative arm
of Suffolk County, without an independent legal identity.”).
However, given Plaintiff's pro se status and affording his
Complaint a liberal construction, the Court considers whether
Plaintiff has alleged a plausible Section 1983 claim against
the municipality--Suffolk County.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 49 of 151

Duva v. Riverhead Correctional Facility Medical Dep., Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
A municipality cannot be held liable under Section 1983 on a
respondeat superior theory. See Monell v. Dep't of Soc. Servs.
of N.Y. City, 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L.
Ed. 2d 611 (1978); Roe v. City of Waterbury, 542 F.3d 31, 36
(2d Cir. 2008). Although Defendant does not raise a Monell
argument, Plaintiff wholly fails to allege in his Complaint that
any of the challenged actions were undertaken pursuant to a
municipal policy, practice, or custom that deprived Plaintiff of
a constitutional right as is required by Monell and its progeny.
Thus, to the extent that Plaintiff brings this action against the
County, he has failed to allege a policy or practice and his
claims are insufficiently pled.
The Court further notes that although Plaintiff has not named
any individual employees, in order to state a claim for relief
under Section 1983 against an individual defendant, he must
allege the personal involvement of that individual in the
alleged constitutional deprivation. Farid v. Elle, 593 F.3d 233,
249 (2d Cir. 2010).
Accordingly, Plaintiff's claims are DISMISSED WITHOUT
PREJUDICE. “When a motion to dismiss is granted, the usual
practice is to grant leave to amend the complaint.” Hayden v.
Cty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999); see also FED.
R. CIV. P. 15(a)(2) (“The court should freely give leave [to
amend] when justice so requires.”). Leave to replead should
be liberally granted to pro se litigants. Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010). Plaintiff is thus given the
opportunity to amend his Complaint in accordance with this
Order. Any Amended Complaint shall be filed within thirty
(30) days from the date of this Order, shall be titled “Amended
Complaint,” and shall bear Docket No. 19-CV-1429. Plaintiff
is cautioned that the Amended Complaint will completely
replace the original Complaint. Therefore, all claims and
allegations Plaintiff wishes to pursue must be included in the
Amended Complaint. Plaintiff is warned that his failure to
timely file an Amended Complaint will lead to the dismissal
of his claims WITH PREJUDICE and the case will be closed.
CONCLUSION
For the foregoing reasons, Defendant's motion (Docket Entry
19) is GRANTED. Given Plaintiff's pro se status, the Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order would not be taken in good faith and therefore
in forma pauperis status is DENIED for purposes of an appeal.
Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct.
917, 8 L. Ed. 2d 21 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 5537250
Footnotes
1 In deciding a motion to dismiss, the Court is generally confined to “the allegations contained within the
four corners of [the] complaint.” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998).
However, the Court may consider “any written instrument attached to [the complaint] 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) (internal quotation marks and citation omitted).
2 This matter was previously assigned to Hon. Joseph F. Bianco. In granting Plaintiff's request to proceed in
forma pauperis and granting him leave to file the Complaint, Judge Bianco also construed the “Notice of
Claim” as a Complaint brought pursuant to Section 1983. (IFP Order, D.E. 10, at 1.)
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 50 of 151

Duva v. Riverhead Correctional Facility Medical Dep., Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Declined to Follow by Public Administrator of County of Nassau v. County
of Nassau, E.D.N.Y., March 21, 2024
2019 WL 5537250
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Nicholas DUVA, Plaintiff,
v.
RIVERHEAD CORRECTIONAL
FACILITY MEDICAL DEP., Defendant.
19-CV-1429(JS)(AYS)
|
Signed 10/25/2019
Attorneys and Law Firms
For Plaintiff: Nicholas Duva, pro se, 585872, Suffolk County
Correctional Facility, 110 Center Drive, Riverhead, New York
11901.
For Defendant: Arlene S. Zwilling, Esq., Suffolk County
Attorney, H. Lee Dennison Building-Fifth Floor, 100 Veterans
Memorial Highway, P.O. Box 6100, Hauppauge, New York
11788-0099.
MEMORANDUM & ORDER
SEYBERT, District Judge:
*1 Pro se plaintiff Nicholas Duva (“Plaintiff” or “Duva”)
brings this action against defendant Riverhead Correctional
Facility Medical Department (“Defendant” or “Riverhead”)
pursuant to 42 U.S.C. § 1983 (“Section 1983”), alleging
that his constitutional rights were violated due to improper
medical care he received as an inmate. (Compl., D.E. 1.)
Defendant moves to dismiss the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). (Mot., D.E. 19.)
For the following reasons, Defendant's motion is GRANTED
and the Complaint is DISMISSED WITHOUT PREJUDICE
AND WITH LEAVE TO REPLEAD.
BACKGROUND
The following facts are presumed to be true for purposes
of this motion. Plaintiff, who is incarcerated at Suffolk
County Correctional Facility in Riverhead, “was overdosed
on a serious medication (methadone)” “sometime in October
2018” “around 6:45 p.m.” (Compl. ¶¶ 2, 3.) At that time,
Plaintiff was “get[ting] 80 mg [of methadone] and was given
230 mg, almost trip[ ]le [his] dose which led [him] to overdose
and be taken to the ER.” (Compl. ¶ 2.) In February 2019,
Plaintiff was still experiencing “severe medical damage, and
illness along with mental anxiety, emotionally disturbed,
sleepless and fearful.” (Compl. ¶ 3.)
Plaintiff attached a copy of his Inmate Grievance Form, dated
February 10, 2019, to the Complaint. 1 (Compl. at ECF p. 3.)
His grievance was denied because it was submitted five days
beyond the occurrence. The grievance coordinator also noted
that “Inmate Duva is receiving his mediation as prescribed by
his providers.” (Compl. at ECF p. 3.)
Plaintiff commenced this action by filing a “Notice of
Intention to File a Claim” with this Court which, given his
pro se status, is liberally construed as a Complaint brought
pursuant to Section 1983. 2 Defendant moves to dismiss the
Complaint, arguing that Plaintiff has not alleged deliberate
indifference to his serious medical needs. (Def. Br., D.E. 19-1,
at 1-2.) In his brief opposition to the motion, Plaintiff states
that “in this incident [he] was overdosed because [of] reckless
behavior by the medical department.” (Pl. Opp., D.E. 28.)
DISCUSSION
I. Motion to Dismiss
To survive a motion to dismiss, a complaint must plead
“enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S. Ct. 1955, 1974 (2007). A claim is plausible “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, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
A complaint filed by a pro se litigant is to be construed
liberally and “however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct.
2197, 2200, 167 L. Ed. 2d 1081 (2007). Nevertheless, a pro se
complaint must state a plausible claim for relief and comply
with the minimal pleading standards set forth in Federal
Rule of Civil Procedure 8. Vallen v. Plan, No. 15-CV-0703,
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 51 of 151

Duva v. Riverhead Correctional Facility Medical Dep., Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
2017 WL 627415, at *2 (E.D.N.Y. Feb. 14, 2017) (citing
Hiller v. Farmington Police Dep't, No. 12-CV-1139, 2015 WL
4619624, at *7 (D. Conn. July 31, 2015)).
II. Deliberate Indifference to Medical Needs
*2 A prisoner's claim for “alleg[ations] that he was
improperly medicated and denied appropriate medical
attention to treat his injuries” is construed as a “violation
of his Eighth Amendment right to be free from cruel and
unusual punishment.” Varricchio v. Cty. of Nassau, 702 F.
Supp. 2d 40, 53 (E.D.N.Y. 2010). “ ‘Because the Eighth
Amendment is not a vehicle for bringing medical malpractice
claims, nor a substitute for state tort law, not every lapse in
prison medical care will rise to the level of a constitutional
violation.’ ” Langer v. Buerkle, No. 15-CV-0668, 2019 WL
3753796, at *4 (E.D.N.Y. Aug. 8, 2019) (quoting Smith v.
Carpenter, 316 F. 3d 178, 184 (2d Cir. 2003)). “To show
that prison medical treatment was so inadequate as to amount
to ‘cruel or unusual punishment’ prohibited by the Eighth
Amendment, [a] plaintiff must prove that [a] defendant[’s]
actions or omissions amounted to ‘deliberate indifference to a
serious medical need.’ ” Abdur-Raqiyb v. Erie Cty. Med. Ctr.,
536 F. Supp. 2d 299, 301 (W.D.N.Y. 2008) (quoting Estelle
v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251
(1976)).
“A medication error alone, as to either the type or dose
of medication, is not deliberate indifference. It is, at most,
medical malpractice, which is not actionable under § 1983.”
Pyle v. Robin Sims, No. 15-CV-5245, 2017 WL 663518,
at *6 (W.D. Ark. Jan. 30, 2017), R&R adopted 2017 WL
662991 (collecting cases). In order to state a constitutional
claim, a plaintiff must allege that a defendant administered
an overdose of a drug “with the requisite intent to cause him
pain or physical harm, or with culpable recklessness, i.e., an
act or a failure to act that evinces a conscious disregard of
a substantial risk of serious harm.” Abdur-Raqiyb, 536 F.
Supp. at 302 (internal quotation marks, alteration, and citation
omitted) (collecting cases).
III. Application
A. Allegations
Plaintiff alleges that Defendant's employee recklessly,
not “mere[ly] negligent[ly,]” administered him too much
methadone. (Pl. Opp.; see also generally Compl.) This
caused him to suffer “severe medical damage” that allegedly
continued for several months after the overdose. (Compl.
¶ 3.) In his opposition, Plaintiff argues that “between what
happen[ed] and also the hospital records at Peconic Bay
in Riverhead ... [he believes he can] prove the medical
dep[artment] did in fact act reckless.” (Opp.) However, the
Complaint itself does not sufficiently allege a constitutional
violation. Plaintiff has alleged only one dosage error. See
Stasicky v. S. Woods State Prison, No. 03-CV-0369, 2007
WL 1723467, at *9 (D.N.J. June 12, 2007) (“even if the
Court were to assume Plaintiff's allegation that [the doctor]
‘doubled’ his medication [on one occasion], that allegation
does not rise to more than negligence”). And his conclusory
claim (found in his Opposition, and not in the Complaint
itself) that the employee(s) acted “reckless” is not sufficient
to show the conscious disregard necessary for a constitutional
violation.
Further, Plaintiff states in the Complaint that after the
overdose, he was taken to the emergency room. Thus, the
medical staff treated him upon discovering the error. Cf.
Varricchio, 702 F. Supp. 2d at 57-59 (motion to dismiss
denied where Plaintiff alleged he was improperly medicated
on two occasions, requested to go to the hospital but staff
waited several days to bring him to the medical unit, and
was found lying face down in his cell with a heartrate of 15
beats per minute; and that the improper dosage was due to a
County policy of not properly labeling inmate medications);
Barnett v. Luttrell, 414 F. App'x 784, 788 (6th Cir. 2011)
(no constitutional violation where nurse administered inmate
anti-seizure medication instead of ibuprofen (as prescribed),
but her abandoning him and failing to treat him after he fell
due to the anti-seizure medication was actionable).
B. The Defendant
*3 Additionally, Plaintiff's Section 1983 claim against
Defendant is not plausible because Defendant does not
have an independent legal identity. “[D]epartments that are
merely administrative arms of a municipality do not have a
legal identity separate and apart from the municipality and,
therefore, cannot sue or be sued.” Davis v. Lynbrook Police
Dep't, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002); Trahan v.
Suffolk Cty. Corr. Fac., No. 12-CV-4353, 2012 WL 5904730,
*3 (E.D.N.Y. Nov. 26, 2012) (dismissing claims against the
Suffolk County Jail because it “is an administrative arm
of Suffolk County, without an independent legal identity.”).
However, given Plaintiff's pro se status and affording his
Complaint a liberal construction, the Court considers whether
Plaintiff has alleged a plausible Section 1983 claim against
the municipality--Suffolk County.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 52 of 151

Duva v. Riverhead Correctional Facility Medical Dep., Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
A municipality cannot be held liable under Section 1983 on a
respondeat superior theory. See Monell v. Dep't of Soc. Servs.
of N.Y. City, 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L.
Ed. 2d 611 (1978); Roe v. City of Waterbury, 542 F.3d 31, 36
(2d Cir. 2008). Although Defendant does not raise a Monell
argument, Plaintiff wholly fails to allege in his Complaint that
any of the challenged actions were undertaken pursuant to a
municipal policy, practice, or custom that deprived Plaintiff of
a constitutional right as is required by Monell and its progeny.
Thus, to the extent that Plaintiff brings this action against the
County, he has failed to allege a policy or practice and his
claims are insufficiently pled.
The Court further notes that although Plaintiff has not named
any individual employees, in order to state a claim for relief
under Section 1983 against an individual defendant, he must
allege the personal involvement of that individual in the
alleged constitutional deprivation. Farid v. Elle, 593 F.3d 233,
249 (2d Cir. 2010).
Accordingly, Plaintiff's claims are DISMISSED WITHOUT
PREJUDICE. “When a motion to dismiss is granted, the usual
practice is to grant leave to amend the complaint.” Hayden v.
Cty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999); see also FED.
R. CIV. P. 15(a)(2) (“The court should freely give leave [to
amend] when justice so requires.”). Leave to replead should
be liberally granted to pro se litigants. Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010). Plaintiff is thus given the
opportunity to amend his Complaint in accordance with this
Order. Any Amended Complaint shall be filed within thirty
(30) days from the date of this Order, shall be titled “Amended
Complaint,” and shall bear Docket No. 19-CV-1429. Plaintiff
is cautioned that the Amended Complaint will completely
replace the original Complaint. Therefore, all claims and
allegations Plaintiff wishes to pursue must be included in the
Amended Complaint. Plaintiff is warned that his failure to
timely file an Amended Complaint will lead to the dismissal
of his claims WITH PREJUDICE and the case will be closed.
CONCLUSION
For the foregoing reasons, Defendant's motion (Docket Entry
19) is GRANTED. Given Plaintiff's pro se status, the Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order would not be taken in good faith and therefore
in forma pauperis status is DENIED for purposes of an appeal.
Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct.
917, 8 L. Ed. 2d 21 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 5537250
Footnotes
1 In deciding a motion to dismiss, the Court is generally confined to “the allegations contained within the
four corners of [the] complaint.” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998).
However, the Court may consider “any written instrument attached to [the complaint] 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) (internal quotation marks and citation omitted).
2 This matter was previously assigned to Hon. Joseph F. Bianco. In granting Plaintiff's request to proceed in
forma pauperis and granting him leave to file the Complaint, Judge Bianco also construed the “Notice of
Claim” as a Complaint brought pursuant to Section 1983. (IFP Order, D.E. 10, at 1.)
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 53 of 151

Fantasia v. Montefiore New Rochelle, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 20540940
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Irma FANTASIA, Plaintiff,
v.
MONTEFIORE NEW ROCHELLE, Defendant.
19 CV 11054 (VB)
|
Signed June 16, 2022
Attorneys and Law Firms
Andrew Michael Clark, David John Hommel, Jr., Andrew
Rozynski, Eisenberg & Baum, LLP, New York, NY, for
Plaintiff.
Roy W. Breitenbach, Harris Beach PLLC, Uniondale, NY,
Daniel Robert Lecours, Harris Beach PLLC, Albany, NY, for
Defendant.
OPINION AND ORDER
Briccetti, United States District Judge:
*1 Plaintiff Irma Fantasia brings this action against
Montefiore New Rochelle, asserting claims pursuant to
Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. §
794; Section 1557 of the Affordable Care Act (“ACA”), 42
U.S.C. § 18116; and the New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. Law § 296(2).
At a status conference held on April 28, 2022, the
Court directed the parties to brief whether subject-matter
jurisdiction still exists in this case in light of the Supreme
Court's decision in Cummings v. Premier Rehab Keller,
P.L.L.C., 142 S. Ct. 1562 (2022).
For the following reasons, the Court concludes subject-matter
jurisdiction exists, and the case shall proceed to trial.
BACKGROUND
The Court presumes the parties’ familiarity with the factual
background of this case and summarizes only the relevant
procedural history.
Plaintiff commenced this action on December 2, 2019. (Doc.
#1). In her complaint, plaintiff asserted claims pursuant to
Title III of the Americans with Disabilities Act (“ADA”),
Section 504 of the RA, Section 1557 of the ACA, and the
NYSHRL; and she sought compensatory damages, injunctive
relief, and attorney's fees and costs, as well as a declaratory
judgment that defendant violated these statutes.
After the close of discovery, the parties cross-moved for
summary judgment. In plaintiff's motion, she withdrew her
request for injunctive or declaratory relief. On February 1,
2022, the Court granted in part and denied in part defendant's
motion for summary judgment and denied plaintiff's cross-
motion for summary judgment; dismissed plaintiff's ADA
claim; and permitted her RA, ACA, and NYSHRL claims
for emotional-distress damages to proceed to trial. Fantasia v.
Montefiore New Rochelle, 2022 WL 294078 (S.D.N.Y. Feb.
1, 2022).
On April 28, 2022, the Supreme Court decided Cummings
v. Premier Rehab Keller, P.L.L.C., in which the Court held
that emotional-distress damages are not recoverable in private
actions brought to enforce the RA or ACA. 142 S. Ct. at 1576.
The Court reasoned that these statutes were enacted pursuant
to Congress's authority under the Spending Clause, U.S.
Const. art. I, § 8, cl. 1, which grants Congress the power “to set
the terms on which it disperses federal funds” “in the nature of
a contract,” and thus any remedy for violation of those terms
must be one “traditionally available in suits for breach of
contract.” Cummings v. Premier Rehab Keller, P.L.L.C., 142
S. Ct. at 1568, 1576. Emotional-distress damages, the Court
determined, are not traditionally available in contract and
thus are not an available remedy in private actions brought
pursuant to these Spending Clause statutes. Id. at 1574–76.
At a status conference on April 28, 2022, the Court directed
the parties to brief whether subject-matter jurisdiction still
exists in this case in light of the Supreme Court's decision.
On May 19, 2022, defendant filed a brief arguing this case
should be dismissed as moot. (Doc. #69).
On June 2, 2022, plaintiff filed a brief arguing the Court still
possessed subject-matter jurisdiction over her claims. (Doc.
#70 (“Pl. Br.”)). Specifically, plaintiff contends Cummings
was wrongly decided and does not apply to her claims, but,
if Cummings does apply and does preclude an award of
emotional-distress damages, her claims are not moot because
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 54 of 151

Fantasia v. Montefiore New Rochelle, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
she is entitled to seek “expectation” damages, damages for
“dignitary harm,” or nominal damages at trial.
DISCUSSION
I. Legal Standard
*2 The Court “ha[s] an independent obligation to determine
whether subject-matter jurisdiction exists.” Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006). 1 If it “determines at any
time that it lacks subject-matter jurisdiction, the court must
dismiss the action.” Fed. R. Civ. P. 12(h)(3).
Federal courts are courts of limited jurisdiction, and they are
empowered to decide only “Cases” or “Controversies.” U.S.
Const. art. III, § 2, cl. 1. “There is ... no case or controversy,
and a suit becomes moot, when the issues presented are no
longer live or the parties lack a legally cognizable interest in
the outcome.” Chafin v. Chafin, 568 U.S. 165, 172 (2013).
For example, “if in the course of litigation a court finds that
it can no longer provide a plaintiff with any effectual relief,
the case generally is moot.” Uzuegbunam v. Preczewski, 141
S. Ct. 792, 796 (2021).
II. Analysis
A. Expectation Damages
First, plaintiff contends she is entitled to pursue compensatory
damages in the form of “expectation” damages for defendant's
alleged violations of the RA and ACA.
The Court disagrees.
As an initial matter, although plaintiff contends this
Court should reject Cummings’s holding because the case
was wrongly decided, the Court must and will follow
binding Supreme Court precedent. Moreover, the Court is
not persuaded by plaintiff's argument that, by applying
Cummings to this dispute, it would be applying the decision
“retroactiv[ely].” (See Pl. Br. at 4). The Supreme Court
was clear that, when the defendant in Cummings accepted
federal funds in 2016, it did so without “clear notice”
that it could “face [emotional-distress damages] in private
actions brought to enforce the” RA or ACA and, as a result,
the plaintiff could not recover emotional-distress damages.
Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct.
at 1568, 1576. Thus, this Court would not be applying
Cummings retroactively to determine that defendant, which
treated plaintiff in April 2017, also did not have “clear notice”
that liability for emotional-distress damages was a potential
consequence of accepting federal funds at that time.
As explained above, the Supreme Court has determined
that any remedy for violation of the RA or ACA must be
one “traditionally available in suits for breach of contract.”
Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. at
1576.
Compensatory damages other than emotional-distress
damages are generally available in contract cases. For
example, one type of compensatory damages available in
contract is “expectation” damages, which are meant to
provide the plaintiff “the benefit of the bargain that he or she
made by awarding a sum of money that will place [him or her]
in as good a position as he or she would have been in had the
contract been performed.” 24 Williston on Contracts § 64.3
(4th ed. 2022).
A party's expectation damages are measured by:
(a) the loss in the value to him of the other party's
performance caused by its failure or deficiency, plus
(b) any other loss, including incidental or consequential
loss, caused by the breach, less
(c) any cost or other loss that he has avoided by not having
to perform.
*3 Restatement (Second) of Contracts § 347. That said, any
recovery is limited to “an amount that the evidence permits to
be established with reasonable certainty.” Id. § 352.
For example, in a publishing contract, if the publisher
repudiates the contract and the author is unable to publish
his novel with another publisher, the author's expectation
damages “include the loss of royalties that he would have
received had the novel been published together with the
value to him of the resulting enhancement of his reputation.”
Restatement (Second) of Contracts § 347 illus. 1. However, if
the author cannot estimate his loss of royalties or the value of
any lost reputational enhancement “with reasonable certainty,
he cannot recover damages for that loss.” Id. § 352 illus. 1.
In theory, a plaintiff could pursue expectation damages
as a remedy for violations of the RA or ACA. “When
a federal-funds recipient violates conditions of Spending
Clause legislation, the wrong done is the failure to provide
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 55 of 151

Fantasia v. Montefiore New Rochelle, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
what the contractual obligation requires; and that wrong is
‘made good’ when the recipient compensates the ... third-
party beneficiary ... for the loss caused by that failure.”
Barnes v. Gorman, 536 U.S. 181, 189 (2002). When a plaintiff
contends that a recipient of federal funds violated its contract
with the federal government by discriminating against her
on the basis of her disability, as a third-party beneficiary
to the agreement between the receipt and the government,
that plaintiff could be entitled to seek expectation damages
flowing from that breach. See, e.g., Montgomery v. District
of Columbia, 2022 WL 1618741, at *25–26 (D.D.C. May 23,
2022).
However, plaintiff in this case has not offered sufficient
evidence such that a factfinder could determine her
expectation damages with reasonable certainty. Plaintiff
implies defendant's failure to provide an interpreter
diminished the value of the treatment defendant provided
to her during her hospital stay. Specifically, she suggests
the loss she experienced because of defendant's alleged
discrimination was the loss of her daughter as “emotional
support” because her daughter was instead forced to provide
“medical interpretation.” (Pl. Br. at 6). For one, this is
clearly a rebranding of emotional-distress damages, which
are precluded by Cummings. For another, plaintiff does
not explain how a factfinder would quantify this loss with
reasonable certainty. Instead, plaintiff's submission suggests
the opposite—she describes this loss of emotional support as
one she “will never be able to recover” (Pl. Br. at 6), not a loss
that could reasonably be calculated by a jury.
Accordingly, plaintiff may not seek expectation damages at
trial.
B. Damages for Dignitary Harm
Second, plaintiff contends she is entitled to seek
compensatory damages for dignitary harm caused by
defendant's alleged violations of the RA and ACA.
The Court disagrees.
Laws mandating equal access to public places and federal
programs, such as the statutes at issue in this case, were
designed to address “the deprivation of personal dignity that
surely accompanies denials of equal access.” See Heart of Atl.
Motel, Inc. v. United States, 379 U.S. 241, 250 (1964).
*4 Moreover, “intentional discrimination is frequently a
wanton, reprehensible tort.” Cummings v. Premier Rehab
Keller, P.L.L.C., 142 S. Ct. at 1572–73. Torts of this type,
that is, invasions or deprivations of a person's dignity, are
sometimes called “dignitary torts.” Dan B. Dobbs et al., The
Law of Torts § 514 (2d ed. 2021) (“Dignitary torts involve
legally cognizable invasions of rights that stand independent
of both physical and economic harms, that is, invasions
of human dignity in the sense of human worth.”). Certain
statutory schemes allow parties to a contract to recover tort
damages to compensate for emotional distress. 3 Dan B.
Dobbs, Law of Remedies § 12.5(1) (2d ed. 1993).
Here, the Court concludes damages for dignitary harm are not
an available remedy for violations of the RA or ACA.
Discrimination is a dignitary tort, and compensatory damages
are a generally accepted remedy for such torts. See
Restatement (Second) of Torts § 901 cmts. a, c. However, only
specific statutes permit recovery of tort damages in contract
cases, and the Supreme Court held in Cummings that the RA
and ACA do not permit such recovery. See Cummings v.
Premier Rehab Keller, P.L.L.C., 142 S. Ct. at 1576.
Moreover, just because dignitary harm is potentially
caused by violations of the RA and ACA does not
mean that such harm must be redressed by compensatory
damages. For example, dignitary harm may be remedied by
injunctive relief, for example, an order directing a public
accommodation to take remedial steps to provide equal
access to patrons, e.g., Bronx Indep. Living Servs. v. Metro.
Transp. Auth., 2021 WL 1177740, at *19–20 (S.D.N.Y. Mar.
29, 2021) (class action lawsuit brought by Bronx residents
with mobility disabilities seeking an injunction directing
state authorities to make a Bronx subway station wheelchair
accessible), or by an award of nominal damages, e.g., Mueller
v. Swift, 2017 WL 8218227 (D. Colo. Aug. 14, 2017)
(awarding Taylor Swift $1 in nominal damages on her sexual
assault counterclaim).
Further, in one of the cases plaintiff cites, Shaver v.
Independent Stave Co., when the Eighth Circuit enumerated
potential remedies for the dignitary harm suffered by an
ADA tester, it did not mention compensatory damages.
350 F.3d 716, 725 (8th Cir. 2003) (“nominal damages, ...
attorneys’ fees, exemplary damages, and injunctive relief”).
Plaintiff's other authorities address only whether dignitary
harm constitutes a concrete, particularized injury for the
purposes of standing, not whether such an injury can be
redressed by an award of compensatory damages. See, e.g.,
Griffin v. Dep't of Lab. Fed. Credit Union, 912 F.3d 649 (4th
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 56 of 151

Fantasia v. Montefiore New Rochelle, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
Cir. 2019) (blind ADA tester did not establish standing to
challenge a credit union's inaccessible website); Carello v.
Aurora Policemen Credit Union, 930 F.3d 830 (7th Cir. 2019)
(same); Camarillo v. Carrols Corp., 518 F.3d 153 (2d Cir.
2008) (per curiam) (legally blind plaintiff had standing to
assert Title III ADA claims against a local restaurant “at least
at this stage in the litigation” because she suffered an injury).
Thus, even if plaintiff were able to show she suffered dignitary
harm at trial, such harm would not entitle her to compensatory
damages.
Accordingly, plaintiff may not seek damages for dignitary
harm at trial.
C. Nominal Damages
Finally, plaintiff contends she is entitled to seek nominal
damages for defendant's alleged violations of the RA and
ACA.
The Court agrees.
In a contract action, if a plaintiff cannot show actual damages
flowing from the breach of contract, she is entitled to nominal
damages. Restatement (Second) of Contracts § 346(2) (“If
the breach caused no loss or if the amount of the loss is not
proved ..., a small sum fixed without regard to the amount
of loss will be awarded as nominal damages.”); 24 Williston
on Contracts, supra, § 64.9; see, e.g., Manhattan Sav. Inst. v.
Gottfried Baking Co., 286 N.Y. 398, 400 (1941) (per curiam)
(plaintiff awarded nominal damages of six cents).
*5 A plaintiff who seeks nominal damages to redress an
injury has standing to pursue her claim in federal court; that
is, her claim is not moot. Uzuegbunam v. Preczewski, 141 S.
Ct. at 801–02.
Moreover, a plaintiff may seek nominal damages at trial even
if she did not explicitly request nominal damages in her
complaint. See Irish Lesbian & Gay Org. v. Giuliani, 143
F.3d 638, 651 (2d Cir. 1998); see also Fed. R. Civ. P. 54(c)
(final judgments shall “grant the relief to which each party is
entitled, even if the party has not demanded that relief in its
pleadings”).
Here, plaintiff is entitled to seek nominal damages on her RA
and ACA claims at trial.
First, nominal damages are a generally accepted remedy in
contract actions, 24 Williston on Contracts, supra, § 64.9, and
the Supreme Court in Cummings held that generally accepted
contract remedies were appropriate to redress violations of the
RA and ACA. 142 S. Ct. at 1578.
Second, plaintiff's claims are not moot in light of her request
for nominal damages. Uzuegbunam v. Preczewski, 141 S. Ct.
at 802.
Third, plaintiff's decision not to request nominal damages in
her complaint is not dispositive. Because plaintiff requested
compensatory damages in her complaint, she may seek
nominal damages at trial. See Irish Lesbian & Gay Org. v.
Giuliani, 143 F.3d at 651.
Accordingly, plaintiff's claims are not moot, and she is
permitted to seek nominal damages at trial.
CONCLUSION
The Court has subject-matter jurisdiction over this dispute,
and the case shall proceed to trial.
The Court will conduct a case management conference on
July 15, 2022, at 2:30 p.m., at which time the parties shall be
prepared to discuss, among other things, whether the parties
consent to a bench trial, the setting of a trial date, and a
schedule for pretrial submissions; as well as what good faith
efforts they have made and will make to settle this case.
The conference will be held in person at the White Plains
courthouse, courtroom 620.
All Citations
Not Reported in Fed. Supp., 2022 WL 20540940
Footnotes
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 57 of 151

Fantasia v. Montefiore New Rochelle, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
1 Unless otherwise indicated, case quotations omit all internal citations, quotations, footnotes, and alterations.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 58 of 151

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.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 59 of 151

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
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 60 of 151

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 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 61 of 151

Hunter v. Rouse, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 8474744
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Tylik HUNTER, Plaintiff,
v.
A. ROUSE, ORC Counselor; Greene Correctional
Facility and C. Putnan, Correction Officer;
Greene Correctional Facility, Defendants.
9:20-CV-65 (LEK/DJS)
|
Filed 09/17/2020
Attorneys and Law Firms
TYLIK HUNTER, Plaintiff Pro Se, 18-B-0977, Coxsackie
Correctional Facility, Box 999, Coxsackie, New York 12051.
OF COUNSEL: NICHOLAS LUKE ZAPP, ESQ., Assistant
Attorney General, HON. LETITIA JAMES, Attorney
General for the State of New York, Attorney for Defendants,
The Capitol, Albany, New York 12224.
REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
*1 Pro se Plaintiff Tylik Hunter brings this civil rights
action, pursuant to 42 U.S.C. § 1983, alleging that Defendants
used excessive force in violation of his Eighth Amendment
rights and denied him his First Amendment right to free
exercise of religion. Dkt. No. 1, Compl. On initial review of
the Complaint pursuant to 21 U.S.C. §§ 1915(e) & 1915A, the
District Court permitted Plaintiff's claims against Defendants
Rouse and Putnan to proceed, and dismissed Plaintiff's claims
against Defendant Gonzales. Dkt. No. 10, pp. 5-6. Presently
before the Court is a Motion to Dismiss from Defendants
Rouse and Putnan, filed pursuant to FED. R. CIV. P. 12(b)
(6), on the grounds that (1) Plaintiff failed to exhaust his
administrative remedies prior to commencing this action, and
(2) Plaintiff's First Amendment Free Exercise claim fails as a
matter of law. Dkt. No. 17-1, Defs.’ Mem. of Law. Plaintiff
has filed an opposition to the Motion. Dkt. No. 19, Pl.’s Opp.
I. FACTUAL BACKGROUND 1
Plaintiff was incarcerated at Greene Correctional Facility
when, at an unspecified date and time, Plaintiff claims
Defendants “threw [him] up on the wall” and “beat and
stomped on [him] while hand-cuffed.” Compl. at p. 4. 2 Then,
Defendant Putnan “sprayed a half can of ma[c]e all over
[Plaintiff's] hair and face.” Id. During this incident, Plaintiff
asserts Defendants “snatched [his] kufi off [his] head and
spit on it,” then “began stepping on [his] kufi.” Id. Plaintiff
is presently incarcerated at Coxsackie Correctional Facility
where he filed his Complaint. See generally id.
II. STANDARD OF REVIEW
In considering a Motion to Dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the Court must “accept all
‘well-pleaded factual allegations’ in the complaint as true.”
Lynch v. City of New York, 952 F.3d 67, 74-75 (2d Cir. 2020)
(quoting Ashcroft v. Iqbal, 556 U.S. 661, 679 (2009)). Mere
legal conclusions, on the other hand, are not entitled to this
assumption of truth. See Ashcroft v. Iqbal, 556 U.S. at 679;
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Ashcroft v.
Iqbal, 556 U.S. at 679. The Court must also “construe all
reasonable inferences that can be drawn from the complaint
in the light most favorable to the plaintiff.” Arar v. Ashcroft,
585 F.3d 559, 567 (2d Cir. 2009).
While the factual allegations alleged in the Complaint need
not be detailed, they still “must be enough to raise a right to
relief above the speculative level,” and “nudge[ ] [Plaintiff's]
claims across the line from conceivable to plausible,” Bell
Atlantic Corp. v. Twombly, 550 U.S. at 555 &570. “[O]nly
a complaint that states a plausible claim for relief survives
a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. at 679.
“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. “The assessment of whether a complaint's
factual allegations plausibly give rise to an entitlement to
relief ‘does not impose a probability requirement at the
pleading stage; it simply calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence of
illegal’ conduct.” Lynch v. City of New York, 952 F.3d at 75
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at 556).
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 62 of 151

Hunter v. Rouse, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
*2 “It is well established that the submissions of a pro se
litigant must be construed liberally and interpreted to raise the
strongest arguments they suggest.” Meadows v. United Servs.,
Inc., 963 F.3d 240, 243 (2d Cir. 2020) (quoting Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)).
Nevertheless, a complaint from a pro se plaintiff must still
“state a plausible claim for relief.” Walker v. Schult, 717 F.3d
119, 124 (2d Cir. 2013) (quoting Harris v. Mills, 572 F.3d 66,
73 (2d Cir. 2009)).
III. DISCUSSION
A. Exhaustion under the Prison Litigation Reform Act
Defendants move for dismissal, in part, on the ground
that Plaintiff failed to properly exhaust his administrative
remedies prior to commencing this action. Defs.’ Mem. of
Law at pp. 3-7.
1. The Grievance Process
The PLRA provides, in pertinent part, that “[n]o action shall
be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). The Supreme Court has held that “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.” Porter v. Nussle, 534 U.S. 516,
532 (2002) (citation omitted). Exhaustion in prisoner cases
covered by § 1997e(a) is mandatory. Id. at 524; Ross v. Blake,
136 S. Ct. 1850, 1856 (2016) (stating that the mandatory
language of § 1997e(a) forecloses judicial discretion to craft
exceptions to the requirement). Furthermore, § 1997e(a)
requires “proper exhaustion,” which means using all steps of
the administrative process and complying with “deadlines and
other critical procedural rules.” Woodford v. Ngo, 548 U.S.
81, 93 (2006). “Failure to exhaust administrative remedies
is an affirmative defense under the PLRA, not a pleading
requirement.” Williams v. Priatno, 829 F.3d 118, 122 (2d Cir.
2016); see Jones v. Bock, 549 U.S. 199, 216 (2007). Thus, the
defendant bears the burden of proving that the administrative
remedies available to the plaintiff were not exhausted prior
to the initiation of a civil action. Howard v. Goord, 1999 WL
1288679, at *3 (E.D.N.Y. Dec. 28, 1999).
In New York, the administrative remedies consist of a three-
step Inmate Grievance Program (“IGP”). First, a grievance
is submitted to the Inmate Grievance Resolution Committee
(“IGRC”), a committee comprised of both inmates and
facility employees. 7 N.Y.C.R.R. § 701.5(b). An inmate
must submit a grievance “within 21 calendar days of the
alleged occurrence.” Id. at § 701.5(a). An inmate may request
an extension of the time limit within forty-five days of
the date of the alleged occurrence. Id. at § 701.6(g). The
IGRC reviews and investigates the formal complaint and then
issues a written determination. Id. at § 701.5(b). Second,
upon appeal of the IGRC decision, the superintendent of
the facility reviews the IGRC's determination and issues
a decision. Id. at § 701.5(c). Finally, upon appeal of
the superintendent's decision, the CORC makes the final
administrative determination. Id. at § 701.5(d). Only upon
exhaustion of all three levels of review may a prisoner seek
relief in federal court. Bridgeforth v. Bartlett, 686 F. Supp.
2d 238, 239 (W.D.N.Y. 2010) (citing, inter alia, Porter v.
Nussle, 534 U.S. at 524); see also Neal v. Goord, 267 F.3d
116, 121 (2d Cir. 2001), overruled on other grounds by Porter
v. Nussle, 534 U.S. 516.
*3 An expedited procedure exists for grievances regarding
alleged harassment; this procedure also requires that the
grievant receive a response from CORC in order to
exhaust. 7 N.Y.C.R.R. § 701.8. Pursuant to this expedited
procedure, the inmate may first report the incident to the
employee's immediate supervisor. Id. at § 701.8(a). The
inmate's allegations are then given a grievance number and
the superintendent (or his designee) must promptly decide
whether the grievance, if true, would represent a bona fide
case of harassment. Id. at §§ 701.8(b) & (c).
2. Plaintiff's Failure to Exhaust his Claims
In this case, it is undisputed that Plaintiff did not file a
grievance regarding the facts alleged in his Complaint and
therefore did not exhaust his administrative remedies. Compl.
at p. 2. Plaintiff concedes in his Complaint that there is a
grievance procedure in place at Coxsackie C.F., but that he
did not file a grievance. Compl. at pp. 2-3.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 63 of 151

Hunter v. Rouse, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
3. Whether Plaintiff's Failure to Exhaust his
Administrative Remedies May be Excused
A prisoner's failure to exhaust administrative remedies may
nonetheless be excused if remedies were unavailable to
the inmate. Ross v. Blake, 136 S. Ct. at 1858. As the
Supreme Court stated in Ross, “[a]n inmate ... must exhaust
available remedies, but need not exhaust unavailable ones.”
Id. The Court provided three potential circumstances in which
administrative remedies may be unavailable: (1) where the
administrative procedure technically exists but operates as a
“dead end – with officers unable or consistently unwilling
to provide any relief to aggrieved inmates”; (2) where
the administrative scheme is “so opaque that it becomes,
practically speaking, incapable of use”; and (3) where prison
administrators “thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1859-60. Plaintiff bears the burden of
establishing that the grievance procedures were unavailable
within the meaning of Ross. Martin v. Wyckoff, 2018 WL
7356771, at *5 (N.D.N.Y. Oct. 16, 2018), report and
recommendation adopted, 2019 WL 689081 (N.D.N.Y. Feb.
19, 2019).
Plaintiff alleges in his Complaint that he did not file a
grievance because he feared retaliation from Defendants.
Compl. at p. 3 “Specific threats of retaliation or intimidation
by prison employees can render administrative remedies
unavailable.” Thompson v. Kelly, 2019 WL 2374119, at
*4 (N.D.N.Y. Apr. 4, 2019), report and recommendation
adopted, 2019 WL 2371607 (N.D.N.Y. June 5, 2019) (internal
quotation marks omitted) (citing Ross v. Blake, 136 S. Ct.
at 1860, n.3). This “inquiry is an objective one[.]” Adams
v. O'Hara, 2019 WL 652409, at *5 (N.D.N.Y. Feb. 15,
2019) (footnotes omitted). “The fear of retaliation must be
‘reasonable’ to render the grievance procedure ‘unavailable.’
” Chaney v. Vena, 2017 WL 6756645, at *4 (N.D.N.Y.
Nov. 29, 2017), report and recommendation adopted, 2017
WL 6734186 (N.D.N.Y. Dec. 29, 2017) (citations omitted);
Galberth v. Durkin, 2014 WL 7409915, at *7 (N.D.N.Y. Dec.
31, 2014); see Thomas v. Cassleberry, 2007 WL 1231485, at
*2 (W.D.N.Y. Apr. 24, 2007). However, a mere “generalized
fear of retaliation” is insufficient to excuse a failure to
exhaust. Davis v. Doe, 2017 WL 8640829, at *4 (N.D.N.Y.
Dec. 29, 2017), report and recommendation adopted, 2018
WL 1582230 (N.D.N.Y. Mar. 27, 2018); see Thompson v.
Kelly, 2019 WL 2374119, at *4; Brown v. Napoli, 687 F. Supp.
2d 295, 297 (W.D.N.Y. 2009) (“[P]laintiff's mere allegation
of a generalized fear of retaliation is insufficient to excuse his
failure to file a grievance concerning these matters.”).
*4 Here, Plaintiff alleges more than a generalized fear
of retaliation. In his Complaint, Plaintiff alleges Defendant
Rouse told him that if he told “anyone what happened,
the next time [Plaintiff] won't walk away.” Compl. at p. 3.
This is a specific threat of retaliation from Defendant Rouse
to Plaintiff. Galberth v. Durkin, 2014 WL 7409915, at *8
(holding Defendants’ threats that Plaintiff would be beaten
within an inch of his life if he told anyone about the alleged
assault was more than a generalized fear of retaliation and
excused Plaintiff's failure to exhaust). Consequently, based
on the record before the Court at this stage of the case and
viewing the allegations in the light most favorable to Plaintiff,
his specific allegations that he feared retaliation were
sufficiently reasonable to render administrative remedies
unavailable. See Thomas v. Cassleberry, 2007 WL 1231485,
at *2 (“[P]laintiff has alleged enough to show that ordinary
grievance procedures were not available to him because of his
reasonable fear of retaliation.”).
Defendants rely on Salmon v. Bellinger, 2016 WL 4411338
(N.D.N.Y. July 5, 2016), report and recommendation
adopted, 2016 WL 4275733 (N.D.N.Y. Aug. 12, 2016), and
Pridgen v. Beatie, 2018 WL 1402049 (N.D.N.Y. Jan. 17,
2018), to establish Plaintiff's fear of retaliation was simply a
generalized fear and thus insufficient to render the grievance
procedure unavailable. Defs.’ Mem. of Law at pp. 6-7.
However, these cases are distinguishable from the present
matter in two ways. First, they were both decided on a motion
for summary judgment, which entailed a different standard of
review and a more developed record. Second, the plaintiffs’
fear of retaliation in Salmon and Pridgen was determined to
be generalized because occurrences after the specific threats
were made by the defendants contradicted the plaintiffs’
allegations of fear.
In Salmon, the inmate-plaintiff alleged an assault by the
officer-defendant and claimed he made a specific threat that
he would retaliate against him if the plaintiff filed a grievance.
See Salmon v. Bellinger, 2016 WL 4411338, at *4. The
plaintiff was then transferred and stated his reason for not
filing a grievance at the new facility was that he thought
the officers at his previous and current facilities might be
communicating with each other, and that the officers at the
new facility might retaliate on behalf of the defendant. See
id. at *5. The court found plaintiff's fear at the new facility
to be “nothing more than a ‘generalized fear of retaliation[.]’
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 64 of 151

Hunter v. Rouse, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
” Id. (citing Brown v. Napoli, 687 F. Supp. 2d at 297). While
discussing the plaintiff's claim that defendant made a specific
threat to retaliate against him, however, the court stated that
such a claim “would be sufficient to create an issue of material
fact as to whether administrative remedies were available” at
his previous facility. Id. at *4.
In Pridgen, the plaintiff argued his fear of retaliation was
justified to excuse his failure to exhaust because the defendant
and other corrections officers gave him the impression that
filing a grievance would get him a punch in the eye. See
Pridgen v. Beatie, 2018 WL 1402049, at *8. He also alleged
he was specifically told by officers not to report his injuries.
Id. Despite these threats, however, the plaintiff still attempted
to file a grievance. See id. Consequently, the court found
the plaintiff's contention that the grievance process was
unavailable to him because of this fear of retaliation was
“belied by his conduct after the incident.” Id.
It is therefore recommended that Defendants’ motion based
on failure to exhaust be denied at this time. This does not,
however, preclude a later finding that Plaintiff did not exhaust
on a subsequent dispositive motion after some discovery has
occurred.
B. Free Exercise of Religion Claim
“Prisoners have long been understood to retain some
measure of the constitutional protection afforded by the First
Amendment's Free Exercise Clause.” Ford v. McGinnis, 352
F.3d 582, 588 (2d Cir. 2003). “A prisoner's First Amendment
rights, however, are ‘[b]alanced against ... the interests of
prison officials charged with complex duties arising from the
administration of the penal system.’ ” Gilliam v. Baez, 2017
WL 476733, at *4 (S.D.N.Y. Feb. 2, 2017) (quoting Ford v.
McGinnis, 352 F.3d at 588). “Accordingly, a prisoner's free
exercise claims are ‘judged under a reasonableness test less
restrictive than ordinarily applies to alleged infringements
of fundamental constitutional rights.’ ” Id. (quoting Ford v.
McGinnis, 352 F.3d at 588).
*5 “To prevail on a First Amendment claim, a plaintiff
must show that he has a sincerely held religious belief,
that it was substantially burdened, and that defendants’
conduct was not reasonably related to some legitimate
penological interest.” Barnes v. Furman, 629 Fed. Appx.
52, 55 (2d Cir. 2015). 3 There is a substantial burden
“where ‘the state puts substantial pressure on an adherent to
modify his behavior and to violate his beliefs.’ ” Thomas
v. Waugh, 2015 WL 5750945, at *10 (N.D.N.Y. Sept. 30,
2015) (quoting Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir.
1996)). Specifically, “[t]he relevant question in determining
whether [Plaintiff's] religious beliefs were substantially
burdened is whether participation in the [religious activity],
in particular, is considered central or important to [Plaintiff's
religious] practice....” Ford v. McGinnis, 352 F.3d at 593-94.
Furthermore, “[t]he government's interference with plaintiff's
exercise of religion must be ‘more than an inconvenience,’
and must rise to the level of ‘burden[ing] a belief central to
plaintiff's religious doctrine.’ ” Shapiro v. Cmty. First Servs.,
Inc., 2014 WL 1276479, at *10 (E.D.N.Y. Mar. 27, 2014)
(alterations in original) (quoting Alameen v. Coughlin, 892 F.
Supp. 440, 448 (E.D.N.Y. 1995)). “If the plaintiff satisfies the
burden of showing that ‘the disputed conduct substantially
burden[ed] his sincerely held religious beliefs,’ then the
defendant ‘bear[s] the relatively limited burden of identifying
the legitimate penological interests that justify the impinging
conduct.’ ” McLeod v. Williams, 2020 WL 2512164, at *4
(S.D.N.Y. May 15, 2020) (alterations in original) (quoting
Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir. 2006)).
Still, “the burden remains with the prisoner to ‘show that these
[penological] concerns were irrational.’ ” Ford v. McGinnis,
352 F.3d at 595 (alterations in original) (quoting Fromer v.
Scully, 874 F.2d 69, 74 (2d Cir. 1989)); Salahuddin v. Goord,
467 F.3d at 275.
Defendants contend that Plaintiff does not allege his beliefs
were substantially burdened when, as Plaintiff asserts,
Defendants pulled his kufi off his head and proceeded to spit
and step on it. Defs.’ Mem. of Law at pp. 8-9. While Plaintiff
does not specifically allege in his Complaint that these actions
substantially burdened his religious beliefs, the Court believes
his claim is nevertheless sufficient to survive a Motion to
Dismiss.
Plaintiff has stated he is Muslim and wears his kufi because of
his religion. Pl.’s Opp. He has also asserted facts that plausibly
suggest his sincerely held religious beliefs were substantially
burdened insofar as he was denied his chosen method of
religious practice, the wearing of his kufi, by Defendants’
actions. Id. Thus, it would be premature to dismiss his
claim without permitting further discovery on the matter to
determine its viability. See McEachin v. McGuinnis, 357 F.3d
197, 201 (2d Cir. 2004) (“Dismissing McEachin's complaint
without requiring an answer from defendants, or permitting
further discovery to determine, for example, whether denying
McEachin properly blessed food ... significantly impeded his
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 65 of 151

Hunter v. Rouse, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
religious observance, makes it impossible to evaluate the
validity of his First Amendment claim.”); Malik v. City of New
York, 2015 WL 3345317, at *12 (S.D.N.Y. Aug. 15, 2015),
report and recommendation adopted, 2012 WL 4475156
(S.D.N.Y. Sept. 28, 2012) (“Malik's allegations that he
practices Islam and that [the officers] ripped up and destroyed
his sacred Quran states a legally sufficient claim under ...
the Free Exercise Clause....”); Thomas v. Waugh, 2015 WL
5750945, at *10 (holding that plaintiff asserted facts sufficient
to plausibly suggest on a motion to dismiss his sincerely held
religious beliefs were substantially burdened by defendant's
refusal to permit him to wear a larger head covering to
honor both his Jamaican heritage and Jewish faith); JCG v.
Ercole, 2014 WL 1630815, at *23 (S.D.N.Y. Apr. 24, 2014),
report and recommendation adopted, 2014 WL 2769120
(S.D.N.Y. June 18, 2014). Furthermore, Defendants have
offered no legitimate penological objective that might justify
their conduct. Young v. Coughlin, 866 F.2d 567, 570 (2d Cir.
1989) (“[I]t [is] incumbent upon prison officials to make
such a showing in order to prevail on a motion to dismiss.”);
JCG v. Ercole, 2014 WL 1630815, at *23 (holding that while
the plaintiff offered few details in support of his assertion
that the defendants denied him access to religious services,
his complaint was sufficient to survive a motion to dismiss,
“particularly given that Defendants offer[ed] no legitimate
penological objective that might justify such a denial.”).
*6 Defendants also assert that Plaintiff's claim warrants
dismissal because he did not allege the kufi was related to
his religious beliefs, nor identify a date or time the incident
occurred, or for how long he was deprived of his Free Exercise
rights. Defs.’ Mem. of Law at pp. 8-9. However, in construing
this pro se plaintiff's Complaint liberally on a Motion to
Dismiss, the Court finds Plaintiff's factual allegations to be
“enough to raise a right to relief above the speculative level.”
Torres v. Carry, 672 F.Supp.2d 338, 342 (S.D.N.Y. 2009)
(quoting Atlantic Bell Corp. v. Twombly, 550 U.S. at 555).
IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Defendants’ Motion to Dismiss
(Dkt. No. 17) be DENIED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) 4 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 (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993) (citing Small v. Sec'y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72 & 6(a).
All Citations
Not Reported in Fed. Supp., 2020 WL 8474744
Footnotes
1 The facts here are derived from Plaintiff's Complaint and are stated in the light most favorable to him.
2 Citations to the Complaint are made to the pagination assigned by the Court's CM/ECF system.
3 “[T]he Second Circuit has not decided whether the substantial burden test continues to apply [in a free
exercise claim], but has nonetheless required that a prisoner ‘show at the threshold that the disputed conduct
substantially burdens his sincerely held religious beliefs.’ ” McLeod v. Williams, 2020 WL 2512164, at *3
(S.D.N. Y May 15, 2020) (quoting Holland v. Goord, 758 F.3d 215, 220 (2d Cir. 2014)). Because we have no
further guidance from the Second Circuit as to whether the substantial burden requirement still applies, and
neither party disputes its applicability in this case, the Court will address the substantial burden element.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 66 of 151

Hunter v. Rouse, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 6
4 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to
the fourteen-day period, meaning that you have seventeen days from the date the 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.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 67 of 151

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.
801 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.
752 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
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 68 of 151

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.
19 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.
742 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.
37 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
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 69 of 151

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
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
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 70 of 151

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
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
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 71 of 151

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
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
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 72 of 151

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 6
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.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 73 of 151

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 7
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
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 74 of 151

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 8
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
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 75 of 151

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 9
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
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 76 of 151

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 10
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
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 77 of 151

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 11
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
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 78 of 151

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 12
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
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 79 of 151

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 13
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.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 80 of 151

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 14
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.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 81 of 151

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 15
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.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 82 of 151

Massey v. City of New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 4943564
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Tyrone H. MASSEY, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants.
20cv5665 (GBD) (DF)
|
Signed 08/30/2021
Attorneys and Law Firms
Tyrone H. Massey, E. Elmhurst, NY, Pro Se.
Amanda Marie Rolon, New York City Law Department
Office of the Corporation Counsel, New York, NY, for
Defendants City of New York, Correction Officer Palmenteri.
REPORT AND RECOMMENDATION
DEBRA FREEMAN, United States Magistrate Judge
*1 TO THE HONORABLE GEORGE B. DANIELS,
U.S.D.J.:
Pro se plaintiff Tyrone H. Massey (“Plaintiff”), a pre-trial
detainee at the West Facility on Rikers Island, 1 has brought
this civil rights action under 42 U.S.C. § 1983, alleging that
his constitutional rights were violated by defendants New
York City Department of Corrections (“NYC DOC”), 2 City
of New York (the “City”); Officer Palmenteri (“Palmenteri”);
Captain John Doe and Corrections Officer John Doe
(together, the “John Doe Defendants”); and psychologist
Dr. Ho (“Ho”) 3 (all, collectively, “Defendants”), while he
was detained at the George R. Vierno Center (“G.R.V.C.”)
on Rikers Island. Before this Court for a report and
recommendation is the motion, filed by the City and
Palmenteri, to dismiss Plaintiff's Complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. 18.)
For the reasons discussed below, I respectfully recommend
that the motion to dismiss be granted. Further, as the reasons
for dismissal would necessarily apply to Plaintiff's claims
against the remaining defendants, I recommend that the action
be dismissed in its entirety.
BACKGROUND
A. Factual Background
The Complaint sets forth the following facts, which are
assumed true for the purpose of this motion to dismiss. See
Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012).
On May 5, 2020, a fire allegedly broke out in Plaintiff's
cell at the West Facility on Riker's Island at approximately
12:30 p.m., filling the cell with smoke. (Compl., at ECF 5.)
Despite Plaintiff's pleas to vacate his cell, Palmenteri and
the John Doe Defendants allegedly denied Plaintiff medical
attention and left him in his cell as the fire continued. (See
id.) Plaintiff allegedly then begged Ho, a psychologist who
had been observing him at the time, to provide him with
medical care (see id., at ECF 6); Ho, however, allegedly left
the housing area without assisting Plaintiff (see id.). Plaintiff
alleges that he then remained in his cell for 10 hours before
receiving any medical attention. (Id.) As a result of this
incident, Plaintiff allegedly experienced breathing problems,
as well as chest pain, headaches, blurry vision, eye pain,
anxiety, and post-traumatic stress. (See id., at ECF 7.) He
also claims to have needed ongoing psychiatric treatment as
a result of this incident. (See id.)
B. Procedural History
1. Plaintiff's Complaint and
Defendants’ Motion To Dismiss
*2 Plaintiff filed his pro se Complaint on July 7, 2020, 4
alleging that the May 5, 2020 incident in his cell was violative
of his constitutional rights and indicative of NYC DOC's
alleged pattern of deliberate indifference to his and other
inmates’ medical needs. (See Compl., at ECF 5-6.) Plaintiff
sought both compensatory and punitive damages, as well
as the issuance of a court order that would require NYC
DOC personnel to follow the proper policies and procedures
for providing medical care to inmates. (See id., at ECF 7.)
Notably, Plaintiff stated in the Complaint: “I have not written
any grievance because [NYC DOC] personnel intimidates
and retaliates [against] myself and inmates when we make
complaints[,] putting me in fear [for] my life.” (Id., at ECF 6.)
Soon after the Complaint was filed, Judge Daniels granted
Plaintiff's request to proceed in forma pauperis. (Dkt. 4.)
Then, on August 13, 2020, Judge Daniels instructed the
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 83 of 151

Massey v. City of New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
New York City Law Department (the “Law Department”),
as the attorney for and agent of NYC DOC, to ascertain
the identities, badge numbers, and addresses of the John
Doe Defendants and to provide that information to Plaintiff,
pursuant to Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997).
(See 8/13/20 Order, at 2.) In the same Order, Judge Daniels
instructed Plaintiff to amend his Complaint within 30 days of
receiving any Doe-related information. (Id., at 3.)
Before the Law Department satisfied its obligations under
Valentin, 5 defendants City of New York and Palmenteri (the
“Moving Defendants”) filed the instant motion to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (Dkt. 18.) In their supporting memorandum of
law, the Moving Defendants raised two arguments. First,
they contended that because, on the face of the Complaint,
Plaintiff admitted that he failed to exhaust all administrative
remedies via the inmate grievance procedure, as required
under the Prison Litigation Reform Act (“PLRA”), he should
be held barred from pursuing relief in federal court. (See
Memorandum of Law in Support of Defendants’ Motion
to Dismiss the Complaint Pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, dated Jan. 11, 2021 (“Defs.
Mem.”) (Dkt. 19), at 4-6.) Second, they argued that Plaintiff's
lack of exhaustion could not be excused because Plaintiff's
allegations were insufficient to suggest that administrative
remedies were unavailable to him. (See id., at 6-9.)
2. Plaintiff's March 7, 2021 Letter to This
Court and the Subsequent Stay of This Action.
*3 On March 7, 2021, Plaintiff submitted a letter in
this action, as well as in several other cases that he had
brought in this District, 6 seeking an extension of time
to file his opposition briefing, for the appointment of pro
bono counsel, and for injunctive relief. (See Plaintiff's Letter
Motion Request for Extension of Time, Injunction Order,
Appoint[ment] of Pro Bono Attorney, dated Mar. 7, 2021 (“Pl.
3/7/21 Ltr.”) (Dkt. 23).) As relevant to the motion now before
this Court, the letter stated:
I am currently undergoing a court order[ed] 730 evaluation
[and am] struggling with mental health issues that [are]
affecting my ability to appropriately focus and organize
myself to litigate my lawsuits. I have over 10 active
lawsuits and [am] currently in defendants[’] custody being
subjected to federal criminal acts that are retaliatory in
nature due to my extensive federal litigation. I have
attempted suicide several times this year. There was a
fire incident in my housing area on Jan. 27, 2021[,]
that has caused damage to my law work. I have made
countless 311 complaints, called 911 countless times[,]
and filed countless grievances/complaints to no avail. The
311/grievance procedure[ ] of NYC DOC operates as a
simple dead end[.] 99% of my grievances are returned and
considered “staff complaints [that] are not subject[ ] to
[the] grievance process.” All of my 311 complaints are only
submitted to the staff/employees of NYC DOC that are
violating me. No one from [the] NYC DOC Investigation
Division speaks to me. I have begged NYC DOC officials/
administrator[s][,] including NYC DOC Commissioner
Cynthia Brann[,] to intervene and put in writing an
executive order directing NYC DOC employees to afford
me all my minimum standard[ ] services via handheld and/
or body camera[s,] and [to] conduct all escorting and search
procedures via body or handheld camera[.] [This would] ...
deter NYC DOC employees from denying me requested
and required mental/medical services ... Such denial has
subjected me to federal criminal acts that ha[ve] caused my
mental and physical well[-]being to deteriorate.
(Id., at ECF 1-2.)
In response to this letter – particularly to Plaintiff's statement
that he was undergoing a court-ordered mental fitness
evaluation in his pending state court criminal case pursuant to
Article 730 of the New York State Criminal Procedure Law
– this Court issued an Order on April 26, 2021, staying all
proceedings in this action, including any remaining briefing
on the motion to dismiss, pending further Order of the Court.
(Dkt. 27.) This Court also directed Defendants to monitor any
developments regarding Plaintiff's evaluation and to submit
timely status reports. (See id.)
3. The Lifting of the Stay and Revival of
the Previously Pending Motion to Dismiss
On June 18, 2021, the Moving Defendants informed this
Court that Plaintiff's 730 Evaluation had been completed and
that he had been deemed “fit to proceed” in the pending state
court criminal case. (Dkt. 31, at 1.) As a result, the Moving
Defendants requested that this Court lift the stay of these
proceedings, and they also sought to “renew” their motion to
dismiss, which was still pending on the Docket. (See id.)
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 84 of 151

Massey v. City of New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
*4 By Order dated June 21, 2021, this Court lifted the
stay and instructed the Moving Defendants to serve Plaintiff
with an additional copy of their motion to dismiss and
their accompanying papers, due to Plaintiff's representation
that his “paperwork [had been] destroyed” by another “fire
incident.” (See Order, dated June 21, 2021 (Dkt. 32); Letter
to the Court from Plaintiff, dated May 21, 2021 (Dkt. 30).)
Further, in light of the arguments raised in the motion to
dismiss, this Court instructed Plaintiff to focus his opposition
on the specific reasons why he had concededly failed to
exhaust his administrative remedies. (See id., at 2.) 7
In a letter dated July 21, 2021, 8 Plaintiff opposed the motion
to dismiss and stated, in relevant part, that he was:
providing for the [C]ourt numerous grievances [he had]
filed that were returned to [him] as ‘staff complaints
– non-grievable.’ See Exhibits A-Y. No matter what
grievances [Plaintiff] file[d,] they [were] returned to [him]
as non[-]grievable[,] demonstrating and establishing [his]
argument that the grievance process of the NYC [DOC]
‘operates as a simple dead end – with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates[,]’ [Plaintiff] included.
(Plaintiff's [Opposition to] Defendants’ Motion to Dismiss,
dated July 21, 2021 (“Pl. Opp.”) (Dkt. 34), at ECF 4.)
In their reply brief, filed on August 25, 2021, the Moving
Defendants contended that dismissal of the Complaint
remained appropriate here because (1) it was still undisputed
that Plaintiff failed to file a grievance concerning the May 5,
2020 incident in his cell; (2) Plaintiff was incorrect in arguing
that it was unnecessary for him to file a grievance before
commencing this action, even if other unrelated grievances
that he had previously submitted were returned to him as
non-grievable; and (3) the grievances that Plaintiff attached
as exhibits to his opposition letter ultimately undermined his
contention that administrative remedies were “unavailable”
to him, as those same grievances showed that he “was well
aware of both the availability of the grievance process and
his obligation to abide by it.” (Reply Memorandum of Law
in Further Support of Defendants’ Motion to Dismiss the
Complaint Pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, dated Aug. 25, 2021 (“Defs. Reply Mem.”)
(Dkt. 38), at 1-4.)
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
A. Rule 12(b)(6)
A complaint may be dismissed pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure where it fails to state a
claim upon which relief can be granted. Fed. R. Civ. P. (12)(b)
(6). In deciding a motion to dismiss, the Court must “accept as
true all factual statements alleged in the complaint and draw
all reasonable inferences in favor of the non-moving party.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d
Cir. 2007); accord Jaghory v. New York State Dep't of Ed.,
131 F.3d 326, 329 (2d Cir. 1997). The issue is not whether
the plaintiff will ultimately prevail, but whether his claim, as
pleaded, is sufficient to afford him the opportunity to proceed
on the evidence. Chance v. Armstrong, 143 F.3d 698, 701 (2d
Cir. 1998).
*5 Thus, on a motion to dismiss, the court's function is “not
to weigh the evidence that might be presented at trial but
merely to determine whether the complaint itself is legally
sufficient.” Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir.
1991) (citing Goldman v. Belden, 754 F.2d 1059, 1067 (2d
Cir. 1985)). At the same time, “conclusory allegations or
legal conclusions masquerading as factual conclusions will
not suffice to defeat a motion to dismiss.” Achtman v. Kirby,
McInerney, & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006)
(internal alteration and citation omitted). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic 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.” Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321
(2d Cir. 2010) (internal alteration omitted) (quoting Iqbal, 556
U.S. at 676), cert. denied, 562 U.S. 1168 (2011).
It is well established that “a complaint filed by a plaintiff
pro se is to be construed ‘liberally to raise the strongest
arguments [it] suggest[s].’ ” McCray v. Lee, 963 F.3d 110,
116-17 (2d Cir. 2020) (quoting Walker v. Schult, 717 F.3d 119,
124 (2d Cir. 2013)); see also Hughes v. Rowe, 449 U.S. 5, 9-10
(1980) (noting that a pro se party's pleadings must be liberally
construed in his favor and are held to a less stringent standard
than the pleadings drafted by lawyers (citations omitted)). As
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 85 of 151

Massey v. City of New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
such, while a court is generally constrained to look only to the
pleadings, see Fed. R. Civ. P. 12(b); Calcutti v. SBU, Inc., 273
F. Supp. 2d 488, 492 (S.D.N.Y. 2003), “the mandate to read
the papers of pro se litigants generously makes it appropriate
to consider [a pro se] plaintiff's additional materials, such as
his opposition memorandum” to supplement the allegations
in the complaint, Burgess v. Goord, No. 98cv2077 (SAS),
1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan. 26, 1999) (internal
quotation marks and citations omitted); see also, e.g., Samuels
v. Fischer, 168 F. Supp. 3d 625, 645 n.11 (S.D.N.Y. 2016)
(finding that, in resolving a motion to dismiss, it was
“appropriate to consider allegations contained in [p]laintiff's
[o]pposition”); Goldson v. Kral, Clerkin, Redmond, Ryan,
Perry & Van Etten, LLP, No. 13cv2737 (GBD) (FM), 2014
WL 4061157, at *3 (S.D.N.Y. July 11, 2014) (amended report
and recommendation) (“[w]hen a plaintiff is proceeding pro
se, the [c]ourt also may rely on any opposition papers in
assessing the legal sufficiency of the plaintiff's claims”),
report and recommendation adopted, 2014 WL 3974584
(Aug. 13, 2014); Sommersett v. Cty. of N.Y., No. 09cv5916
(LTS) (KNF), 2011 WL 2565301, at *3 (S.D.N.Y. June 28,
2011) (“[W]here a pro se plaintiff has submitted other papers
to the [c]ourt, such as legal memoranda, the [c]ourt may
consider statements in such papers to supplement or clarify
the plaintiff's pleaded allegations.”).
Although courts have not followed this approach in every
case, see, e.g., Brunson v. Duffy, No. 12cv9465 (KBF), 2015
U.S. Dist. LEXIS 29015, at *4 (S.D.N.Y. Mar. 6, 2015) (citing
cases where courts declined to consider new facts included in
pro se opposition), it is certainly true that the papers submitted
by a pro se plaintiff in opposition to a Rule 12(b)(6) motion
may offer clarification or context that can aid the Court in
understanding the plaintiff's pleading and in affording it a
liberal construction, see id., at n.4 (noting that “a district court
needs to assess each case on an individual basis”). Applying
the pleading rules permissively is particularly appropriate
when, as here, a pro se plaintiff alleges civil rights violations.
See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191
(2d Cir. 2008). Moreover, where the addition of allegations
contained in opposition papers would be sufficient to enable
an otherwise deficient pro se pleading to survive a Rule 12(b)
(6) motion, the Court may deem the pleading amended to
include the additional allegations. Johnson v. Wright, 234 F.
Supp. 2d 352, 356 (S.D.N.Y. 2002).
B. Exhaustion of Claims Under the PLRA
1. The Statutory Exhaustion Requirement
*6 The PLRA provides that “[n]o action shall be brought
with respect to prison conditions under [42 U.S.C. § 1983],
or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). “Exhaustion is ‘mandatory’ and ‘applies to all
inmate suits about prison life, whether they involve general
circumstances or particular episodes,’ ” or allege excessive
force, the denial of adequate medical care, or some other
wrong. Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009)
(quoting Porter v. Nussle, 534 U.S. 516, 524 (2002)); see
also Ross v. Blake, 578 U.S. 632, 1853 (2016) (stating that
the mandatory language of 42 U.S.C. § 1997e(a) forecloses
judicial discretion to craft exceptions to the exhaustion
requirement); Oates v. Cty. of N.Y., No. 02cv5960 (GEL),
2004 WL 1752832, at *2 (S.D.N.Y. Aug. 4, 2004) (“It is
well established that complaints of inadequate medical care
in prison are claims regarding ‘prison conditions’ that are
squarely covered by the PLRA.”).
In addition, the PLRA requires “proper exhaustion”
of administrative remedies, “meaning exhaustion in
‘compliance with an agency's deadlines and other critical
procedural rules.’ ” Lucente v. County of Suffolk, 980 F.3d
284, 311 (2d Cir. 2020) (quoting Woodford v. Ngo, 548
U.S. 81, 90-91 (2006)). In other words, proper exhaustion
means “using all steps that the agency holds out, and doing
so properly (so that the agency addresses the issues on the
merits).” Woodford, 548 U.S. at 90 (emphasis in original);
see also Lowman v. Baird, No. 16cv6518 (VSB), 2017
WL 6403519, at *5 (S.D.N.Y. Dec. 14, 2017) (“The PLRA
requires ‘proper exhaustion,’ which obligates prisoners to
‘complete the administrative review process in accordance
with the applicable procedural rules – rules that are defined
not by the PLRA, but by the prison grievance process itself.’
” (quoting Jones v. Bock, 549 U.S. 199, 218 (2007))).
Failure to exhaust administrative remedies, under the PLRA,
is an affirmative defense. See Johnson v. Rowley, 569 F.3d
40, 45 (2d Cir. 2009). “Consequently, a plaintiff need not
plead administrative exhaustion in his complaint.” Hickman v.
Cty. of N.Y., No. 20cv4699 (RA) (OTW), 2021 WL 3604786,
at *2 (S.D.N.Y. Aug. 12, 2021). As is the case with other
affirmative defenses, however, “dismissal may be granted at
the pleading stage for failure to exhaust if the defense ‘appears
on the face of the complaint.’ ” Antrobus v. Warden of GRVC,
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 86 of 151

Massey v. City of New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
No. 11cv5128 (JMF), 2012 WL 1900542, at *2 (S.D.N.Y.
May 25, 2012) (quoting Pani v. Empire Blue Cross Blue
Shield, 152 F.3d 67, 74 (2d Cir. 1988)); accord McArdle v.
Ponte, No. 17cv2806, 2018 WL 5045337, at *2-3 (S.D.N.Y.
Oct. 17, 2018). Thus, “courts in this District routinely grant
motions to dismiss where a plaintiff's non-exhaustion is clear
from the face of the complaint.” Hickman, 2021 WL 3604786,
at *2 (compiling cases); see Rivera v. Anna M. Cross Ctr.,
No. 10cv8696 (RJH), 2012 WL 383941, at *2 (S.D.N.Y. Feb.
7, 2012) (“If non[-]exhaustion is clear, a motion to dismiss
should be granted.”); Price v. Cty. of N.Y., No. 11cv6170
(TPG), 2012 WL 3798227, at *3 (S.D.N.Y. Aug. 30, 2012)
(dismissing action under Rule 12(b)(6) where it was “clear
from the face of the complaint that plaintiff [an inmate
formerly housed in a facility on Rikers Island] ha[d] failed to
exhaust the administrative remedies available to him”).
2. NYC DOC's Exhaustion Procedures
Pursuant to Directive 3376R-A, NYC DOC “maintains a
robust administrative grievance procedure – the Inmate
Grievance and Request Program (the “IGRP”) – for inmates
[and detainees] at all of its facilities,” including Rikers
Island. 9 Leneau v. Cty. of N.Y., No. 16cv0893 (RA), 2018 WL
583120, at *3 (S.D.N.Y. Jan. 26, 2018); see, e.g., Hickman,
2021 WL 3604786, at *3 (“At Rikers Island, grievance
procedures are governed by the [IGRP].”); Pizarro v. Ponte,
No. 17cv4412 (LGS), 2019 WL 568875, at *4 (S.D.N.Y.
Feb. 11, 2019) (“As a Rikers Island detainee during the
relevant period, [the p]laintiff's grievance is governed by the
[IGRP].” (internal quotation marks and citation omitted));
Girodes v. Cty. of N.Y., No. 17cv6789 (RWS), 2018 WL
3597519, at *3 (S.D.N.Y. July 26, 2018) (same).
*7 The IGRP applies to “[a]ny inmate who is directly and
personally affected by an issue, condition, practice, service, or
lack of an accommodation with regard to any issue that may
arise in connection with their incarceration or action relating
to their confinement.” IGRP § I. “Claims relating to access to
medical care filed against corrections officers fall within the
IGRP's purview.” Leneau, 2018 WL 583120, at *3.
As to procedure, the IGRP mandates that an inmate
must first either file a grievance, using the Form 7101R
(“OCGS Statement Form”), or call 311 to file a complaint.
IGRP §§ V(F), (H). Within seven business days, the
Grievance Coordinator will assess the inmate's submission
and determine whether it should be dismissed and closed,
referred to a different entity, or investigated further. IGRP
§ VI(A)(1). Upon the close of a further investigation, the
Grievance Coordinator will meet with the inmate to propose
a resolution. Id. If the inmate is not satisfied with the
proposed resolution of the grievance, he can then appeal
to the Commanding Officer. Id. § VII(A). If the inmate is
dissatisfied with the decision of the Commanding Officer, he
may then submit an appeal to the Division Chief. Id. § VIII(A)
(1-2). Lastly, if the inmate is dissatisfied with the decision
of the Division Chief, he may appeal to the Central Office
Review Committee (“CORC”). Id. § IX(A). The CORC's
disposition constitutes the final decision on the grievance. Id.
The IGRP further provides that, “[a]n inmate must use
the grievance process to obtain a final response from the
Department regarding any grievance[.]” Id. § V(K) (emphasis
added). Significantly, even if an inmate predicts that his
grievance will be denied, that “prediction[,] ... even if
wholly reasonable, does not warrant depriving the prison
administration of the opportunity to address the claim in the
first instance, a paramount goal of the PLRA.” Johnson v.
Killian, No. 07cv6641 (LTS) (DFE), 2009 WL 1066248, at
*5 (S.D.N.Y. Apr. 21, 2009); see, e.g., Dixon v. Laboriel, No.
01cv3632 (LAP), 2010 WL 2365860, at *4 (S.D.N.Y. June
10, 2010) (“the alleged ineffectiveness of the administrative
remedies that are available does not absolve a prisoner of
his obligation to exhaust such remedies.” (internal quotation
marks and citation omitted)), aff'd, 433 Fed. App'x 48 (2d Cir.
2011) (Summary Order). Moreover, courts have noted that
the IGRP provides for an appeals process when an inmate
does not receive a timely response to his grievance. See, e.g.,
Barlow v. Mayor of N.Y., No. 19-CV-6786 (KAM) (JO), 2021
WL 3793773, at *5 (E.D.N.Y. Aug. 26, 2021) (noting that,
under Directive 3376R-A, the IGRP “sets forth the procedure
to follow” when prison officials do not respond to inmates’
grievances); see generally IGRP § V(K). Indeed, “[i]t is
well[ ]established that, even if an inmate does not receive a
response to his grievance, he fails to exhaust administrative
remedies if he does not avail himself of the available appeals
process.” Martinez v. Schriro, No. 14cv3965 (KMW) (RLE),
2017 WL 87049, at *2 (S.D.N.Y. Jan. 9, 2017); see also Tyler
v. Argo, No. 14cv2049 (CM) (DF), 2014 WL 5374248, at *4
(S.D.N.Y. Oct. 10, 2014).
Lastly, it is also well settled that “proper exhaustion”
requires an inmate to not only file an initial grievance,
but also to exhaust his claims through each level of the
specified grievance process. See Graham v. Cochran, No.
96cv6166 (LTS) (RLE), 2002 WL 31132874, at *6 (S.D.N.Y.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 87 of 151

Massey v. City of New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 6
Sept. 25, 2002) (“Courts have interpreted the PLRA to
require complete exhaustion in accordance with institutional
procedures.”); see, e.g., Banks v. Mental Health Clinicians,
No. 11cv7848 (LAP), 2012 WL 6201259, at *3-4 (S.D.N.Y.
Dec. 11, 2012) (granting defendants’ motion to dismiss, with
prejudice, where plaintiff, an inmate at Rikers Island, filed
a grievance but failed to appeal it and therefore did not
exhaust the administrative grievance process as required by
the PLRA).
3. Excusal of Lack of Exhaustion When
Administrative Remedies Are Unavailable
*8 Despite the exhaustion requirement, a plaintiff's failure
to exhaust may be “excused” if the Court finds that
administrative remedies were “unavailable” to him. See
Girodes v. Cty. of N.Y., No. 17cv6789 (RWS), 2018 WL
3597519, at *4 (S.D.N.Y. July 26, 2018). As the Supreme
Court stated in Ross v. Blake, “[a]n inmate ... must exhaust
available remedies, but need not exhaust unavailable ones.”
136 S. Ct. 1850, 1858 (2016). The Court, in Ross, identified
three potential circumstances where administrative remedies
may be unavailable:
First, ... an administrative procedure
is unavailable when (despite what
regulations or guidance materials may
promise) it operates as a simple
dead end – with officers unable
or consistently unwilling to provide
any relief to aggrieved inmates....
Next, an administrative scheme might
be so opaque that it becomes,
practically speaking, incapable of use.
In this situation, some mechanism
exists to provide relief, but no
ordinary prisoner can discern or
navigate it.... And finally, the same
is true when prison administrators
thwart inmates from taking advantage
of a grievance process through
machination, misrepresentation, or
intimidation.
Ross, 136 S. Ct. at 1859-60. The Second Circuit has since
reasoned that “[t]he test for deciding whether the ordinary
grievance procedures were available must be an objective
one: that is, would ‘a similarly situated individual of ordinary
firmness’ have deemed them available.” Lucente, 980 F.3d at
311-12 (quoting Hemphill v. New York, 380 F.3d 680, 686 (2d
Cir. 2004) (abrogated on other grounds by Ross, 136 S. Ct.
at 1855)). 10
II. THE MOTION TO DISMISS
As noted above, the Moving Defendants take the position
that Plaintiff's Complaint must be dismissed because Plaintiff
admittedly failed to exhaust his administrative remedies and
his failure cannot be excused. (See generally Defs. Mem;
Defs. Reply Mem.) This position is well supported and
persuasive.
A. Plaintiff's Failure To Exhaust Administrative
Remedies Is Clear From the Face of His Complaint.
Plaintiff has expressly stated in his Complaint that he
did not file any grievance related to the May 5, 2020
incident. (See Compl., at ECF 6 (“I have not written
any grievance”).) Furthermore, although this Court has
considered the additional factual allegations set forth in
Plaintiff's other pro se submissions, including his March
7 letter and his opposition to the motion to dismiss, see
Sommersett, 2011 WL 2565301, at *3, this Court notes
that nowhere in those submissions has Plaintiff suggested
that, in relation to the subject incident, he followed any
of the steps set forth in NYC DOC's IGRP. Indeed,
although Plaintiff indicated in the March 7 letter that he
had attempted to alert officials to unlawful conditions by
making numerous 311 and 911 complaints and by “beg[ging]
NYC DOC officials/administrator[s][,] including NYC DOC
Commissioner Cynthia Brann[,] to intervene” (Pl. 3/7/21 Ltr.,
at ECF 1), nothing in that statement, or in the remainder of
the letter (an identical copy of which was filed in at least 10
pending lawsuits in this District), can be interpreted to mean
that (1) Plaintiff made a 311 call to file a complaint in relation
to the specific incident at hand, or (2) even if such a call
was made, that Plaintiff proceeded to follow the full appeals
procedure set forth in the IGRP, as required. See Graham,
2002 WL 31132874, at *6 (the PLRA requires complete
exhaustion through all levels of the grievance process). 11
*9 Thus, the Moving Defendants are correct that it is plain
from the face of Plaintiff's Complaint (and his accompanying
pro se submissions) that, with respect to his claim in this case,
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 88 of 151

Massey v. City of New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 7
he did not exhaust his administrative remedies in accordance
with the PLRA.
B. Plaintiff's Failure To Exhaust Cannot Be Excused
in This Case.
Liberally construing Plaintiff's pro se submissions, this
Court finds that he has made two distinct arguments to
excuse his conceded lack of exhaustion – (1) that he
has been kept from using the IGRP process by a fear
of retaliation, and (2) that the IGRP, in practice, operates
as an effective “dead end.” With respect to his second
argument, this Court understands Plaintiff to be contending,
more specifically, that administrative remedies should be
considered unavailable to him because the vast majority of
his past grievances did not receive consideration, but, rather,
were either ignored or returned to him with the notation that
complaints seeking staff discipline (which he is apparently
seeking here, at least in part) are non-grievable under the
IGRP. For the reasons discussed below, this Court concludes
that neither of Plaintiff's contentions can support the excusal
of administrative exhaustion under Ross.
Starting with the allegations set forth in the Complaint,
Plaintiff stated there that he did not file a grievance in relation
to the May 5, 2020 incident because NYC DOC personnel
had allegedly “intimidate[d] and retaliate[d]” against him
and other inmates when they made complaints in the past.
(Compl., at ECF 6.) Although the Supreme Court recognized,
in Ross, that, when a prison official inhibits an inmate
from utilizing an administrative process through specific
threats or intimidation, that process can no longer be said
to be “available,” Ross, 136 S. Ct. at 1860 n.3 (internal
quotation marks and citation omitted), here, Plaintiff has
alleged nothing more than a “generalized fear of retaliation
[that] is insufficient to excuse his failure to file a grievance,”
Little v. Mun. Corp. Cty. of N.Y., No. 12cv5851 (KMK),
2017 WL 1184326, at *11-12 (S.D.N.Y. Mar. 29, 2017)
(granting motion to dismiss where, although plaintiff's
complaint stated that he “did not exhaust [his] administrative
remed[ies] [due to] a fear of retaliation from [DOC] officers,”
that statement merely constituted a “generalized fear of
retaliation” that was “insufficient to excuse his failure to
exhaust”); see Brown v. Napoli, 687 F. Supp. 2d 295,
297-98 (W.D.N.Y. 2009) (finding the plaintiff failed to allege
any facts to support his claimed fear of retaliation where
complaint stated that the plaintiff did not file a grievance
due to his “[f]ear for [his] personal safety and retaliation
by correctional staff”); see also Hines v. Valhalla County
Corr., No. 01cv6935 (SAS), 2002 WL 1822740, at *3
(S.D.N.Y. Aug. 8, 2002) (“If an inmate's allegation of a
secondhand retaliatory threat was enough to allow the inmate
to begin litigation without properly filing grievances, the
PLRA's exhaustion requirement could be easily circumvented
by all inmates. A general fear of retaliation is not an
exception to the PLRA's exhaustion requirement.”) Indeed,
Plaintiff's conclusory allegation that some unnamed NYC
DOC personnel had, at some undetermined time, intimidated
or retaliated against him and other unnamed inmates, in some
unidentified manner, fails to serve as an adequate “basis for
him to fear retaliation from filing a grievance relative to
the present incident.” 12 White v. Dishaw, No. 9:14-CV-0002
(GLS/DJS), 2017 WL 4325770, at *3 (N.D.N.Y. June 20,
2017) (the plaintiff's “prior experience filing grievances is not
a well-founded basis” to excuse his failure to exhaust). Thus,
Plaintiff's generalized fear of retaliation cannot adequately
excuse his failure to exhaust. 13
*10 Second, turning to the allegations set forth in Plaintiff's
March 7 letter and his opposition to the motion to dismiss,
Plaintiff now asserts that the IGRP operates as a mere “dead
end” and is therefore an unavailable administrative remedy.
(See Pl. 3/7/21 Ltr., at ECF 1 (“the 311/grievance procedures
at NYC DOC operate[ ] as a simple dead end[;] 99% of my
grievances are returned and considered “staff complaints” not
subject to the grievance process.”); see also Pl. Opp., at ECF
4 (noting that Plaintiff had filed numerous grievances that
were returned to him as “staff complaints – non-grievable”)).
To the extent Plaintiff's past grievances were not considered
because they sought staff discipline, this Court notes that it is
true that, under the IGRP, requests for the removal, censure,
discipline, or termination of a NYC DOC employee is not
subject to the IGRP process. See IGRP § II(6). The Second
Circuit recently acknowledged this in Taylor v. N.Y.C. Dep't
of Corr., 849 Fed. App'x 5, 9 (2d Cir. 2021) (Summary Order)
(“It appears that the IGRP does not outline an appropriate
mechanism for seeking a remedy of staff discipline.”). Yet,
as explained in Taylor and discussed below, the fact that
the IGRP does not provide a mechanism for seeking staff
discipline does not absolve an inmate, like Plaintiff, from
needing to exhaust administrative remedies when he seeks
to allege a substantive issue in later litigation, such as the
unconstitutional deprivation of medical care, because that
type of issue is a grievable claim subject to the IGRP process.
Moreover, as also explained by Taylor, the mere fact that an
inmate may not have received responses to prior grievances
is insufficient to excuse exhaustion.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 89 of 151

Massey v. City of New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 8
In Taylor, the pro se plaintiff had alleged that he was
given inadequate clothing in prison and that he experienced
difficulty in accessing legal services. Id. at 6. Although the
plaintiff claimed that he had filed “numerous grievances about
these conditions,” some of which went unanswered, it was
undisputed that he did not appeal the denial of, or lack of
response to, any of his grievances. See id. at 6-7. In arguing
that he was excused from exhaustion, the plaintiff contended
that the prison's administrative remedies were unavailable to
him because prison officials did not respond to his grievances.
See id. at 8. He also maintained that the PLRA did not require
him to exhaust administrative remedies because he had sought
a remedy that would have resulted in the prison having to
impose staff discipline, which, according to the plaintiff, was
a “non[-]grievable” issue. Id. The Second Circuit rejected
both of these contentions.
To start, the Second Circuit held that “[t]he prison officials’
failure to respond to some of [the plaintiff's] grievances did
not render the IGRP administrative procedure unavailable.”
Id. (citing Williams v. Priatno, 829 F.3d 118, 123-24 (2d Cir.
2016)). Given that the “the IGRP contemplates that prison
officials might not always respond to inmates’ grievances,”
and, thus, sets forth “the procedure to follow in such
circumstances,” the court held that, where the plaintiff knew
of these required steps for exhaustion, but simply “chose
not to follow them,” his unilateral choice did not render
the “exhaustion process ... unavailable for purposes of the
PLRA.” Id. That same conclusion is warranted here where the
attached grievances to Plaintiff's opposition (see Pl. Opp, Exs.
A-Y) reflect that, both before and after the subject incident, he
was well aware of the IGRP, and had, at times, abided by its
procedures, but, in this instance, chose not to follow them. See
Graham, 2002 WL 31132874, at *2 (“Plaintiff is not excused
from the requirement that he exhaust administrative remedies
simply because he views the process as ineffective.”).
Next, with regard to complaints seeking staff discipline, the
Second Circuit noted, in Taylor, that the IGRP provides, in
relevant part:
Requests for the removal of a
Department employee from an
assignment, or the censure, discipline
or termination of a Department
employee are not subject to the
IGRP process. The grievance or
request, including any substantive
issue that prompted such a request, will
otherwise be processed in the ordinary
course as described in this directive.
The IGRP staff shall forward the
complaint seeking discipline of staff
to the staff commander's commanding
officer.
Id. (quoting NYC DOC Directive 3376 § IV (2)(c)); see
also IGRP § II(6) (Directive 3376R-A stating essentially the
same). As in this case, the plaintiff in Taylor had submitted
copies of multiple prior grievances to the district court, as
apparent support for his assertion that his administrative
remedies were unavailable, as a number of those grievances
had purportedly gone unanswered. 14 Those grievances,
however, like the ones that Plaintiff has submitted here (see
Pl. Opp., Exs. A-Y), did not “form the basis” of the specific
constitutional “claim” being argued in the litigation. Rather,
the Second Circuit explained that the suit before it had
been “predicated on [the plaintiff's] allegedly unconstitutional
conditions of confinement and lack of access to the courts,”
849 Fed. App'x at 9, and, as those “substantive issues” were
“grievable,” they were subject to the IGRP appeals process,
id.
*11 Here, Plaintiff has claimed that corrections officers were
“deliberately indifferent to [his] medical needs[,] denying
[him] medical attention.” (Compl., at ECF 5.) Underlying
Plaintiff's allegations about the officers’ behavior is the
substantive issue that, in violation of his civil rights, Plaintiff
was denied medical attention, a claim that Plaintiff could have
grieved through the IGRP. See Leneau, 2018 WL 583120, at
*3 (“Claims relating to access to medical care filed against
corrections officers fall within the IGRP's purview.”); see
also Oates, 2004 WL 1752832, at *2 (characterizing prisoner
complaints regarding inadequate medical care as complaints
regarding prison conditions). Therefore, contrary to Plaintiff's
assertions, the IGRP did provide a means to account for
the harms that he allegedly suffered on May 5, 2020, and
his decision not to follow that exhaustion procedure cannot
be excused on the ground that a meaningful avenue for
exhaustion was unavailable.
In sum, as (1) it is plain from the face of the Complaint that
Plaintiff has not exhausted his administrative remedies, and
(2) Plaintiff has not shown that his failure to exhaust was
excusable, I recommend that the Moving Defendants’ motion
to dismiss (Dkt. 18) be granted.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 90 of 151

Massey v. City of New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 9
C. Dismissal With Prejudice
Lastly, I recommend that the dismissal of Plaintiff's
claims against the Moving Defendants be granted with
prejudice. While it is appropriate for the Court to
dismiss an action without prejudice for failing to exhaust
administrative remedies where “the time permitted for
pursuing administrative remedies has not expired,” Berry v.
Kerik, 366 F.3d 85, 87 (2d Cir. 2004) (quoting Snider v.
Melindez, 199 F.3d 108, 111-12 (2d Cir. 1999)), courts have
generally dismissed claims with prejudice where the plaintiff
had the opportunity to exhaust administrative remedies, failed
to do so, and is no longer able to cure the defect, id. at 88; see
Felix v. Simon, 303 F. App'x 21, 22 (2d Cir. 2008) (Summary
Order) (upholding dismissal of a civil rights action with
prejudice where the time permitted for filing a grievance had
expired because “dismissal with prejudice, when remedies
are no longer available, is required in the absence of any
justification for not pursuing such remedies”).
In this instance, more than one year has passed since the
date when Plaintiff should have filed a grievance regarding
the alleged May 5, 2020 fire in his cell. See IGRP § XI(B)
(1) (“When the inmate demonstrates a valid reason for delay
in submitting a grievance, ... staff may grant an extension
to the inmate to permit the inmate to file a grievance/
request on Form 7101R no more than ten (10) business days
from the date the alleged condition or issue relating to their
confinement took place or began.” (emphasis added)). As the
time permitted for filing a grievance has expired, meaning
that Plaintiff's failure to exhaust his administrative remedies
is at this point incurable, dismissal with prejudice would be
appropriate. See Felix, 303 F. App'x at 21; see also Jenkins
v. Short, No. 9:19-cv-1352 (GTS/TWD), 2020 9264842, at
*7 (N.D.N.Y. Nov. 17, 2020) (recommending dismissal with
prejudice where more than six months had passed since the
plaintiff should have appealed his grievance), report and
recommendation adopted, 2021 WL 958512 (Mar. 15, 2021).
Moreover, I recommend that the Court sua sponte dismiss
Plaintiff's Complaint, with prejudice, in its entirety, even
though certain defendants (Ho and the John Doe Defendants)
have not yet been served and have not appeared in the action.
Under the PLRA, Plaintiff's lack of exhaustion is fatal to his
claims against all Defendants named herein, and it would
therefore be futile for the Court to permit the action to
continue against these remaining defendants.
CONCLUSION
For all of the foregoing reasons, I respectfully recommend
that the Moving Defendants’ motion to dismiss (Dkt. 18) be
granted, and that the Complaint (as against all Defendants)
be dismissed with prejudice under Rule 12(b)(6), based on
Plaintiff's unexcused failure to exhaust his claims.
*12 Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from service of this Report to file written
objections. See also Fed. R. Civ. P. 6. Such objections, and
any responses to objections, shall be filed with the Clerk
of Court, with courtesy copies delivered to the chambers of
the Honorable George B. Daniels, United States Courthouse,
500 Pearl Street, Room 1310, New York, New York, 10007.
Any requests for an extension of time for filing objections
must be directed to Judge Daniels. FAILURE TO FILE
OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL
RESULT IN A WAIVER OF OBJECTIONS AND WILL
PRECLUDE APPELLATE REVIEW. (See Thomas v. Arn,
474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v.
Hermann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson,
968 F.2d 98, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd.,
838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d
234, 237-238 (2d Cir. 1983).)
All Citations
Not Reported in Fed. Supp., 2021 WL 4943564
Footnotes
1 When Plaintiff filed his Complaint, he was a pretrial detainee at the Mid-Hudson Psychiatric Facility. (See
Complaint, dated July 7, 2020 (“Compl.”) (Dkt. 2), at ECF 2 (with the “ECF” prefix referring to the page number
affixed to the document by the Court's “Electronic Case Filing” system).) It appears that Plaintiff was later
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 91 of 151

Massey v. City of New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 10
transferred to the Manhattan Detention Center (see Dkt. 14) and is now at the West Facility on Riker's Island
(see Dkt. 24).
2 Although Plaintiff also originally named NYC DOC as a defendant (see Compl., at ECF 1), the Honorable
George B. Daniels, U.S.D.J., sua sponte dismissed Plaintiff's claim against NYC DOC on August 13, 2020,
on the ground that, under the New York City Charter, an agency of the City is not an entity that can be sued.
(See Order of Service, dated Aug. 13, 2020 (“8/13/20 Order”) (Dkt. 8), at 2 (citing N.Y. City Charter ch. 17,
§ 396).) Although the case caption has not been modified on the Court's Docket, this Court has altered the
caption, above, to reflect NYC DOC's dismissal from the action.
3 This Court cannot discern, from the limited materials before it, the first names of either defendant Palmenteri
or defendant Ho. In addition, this Court notes that, although Plaintiff identified Ho in the Complaint as a
psychologist who worked at “R.H.U.” on Riker's Island (see Compl., at ECF 4), the City has since indicated
that Ho is “[n]ot an employee of [NYC DOC]” (Dkt. 13 (waiver of service returned unexecuted as to defendant
Ho)). It is unclear what agency, if any, is Ho's employer.
4 Under the so-called “prison mailbox rule,” a pro se prisoner's papers are deemed filed when they are handed
over to prison officials for forwarding to the Court. See Houston v. Lack, 487 U.S. 266, 270 (1988); Walker v.
Jastremski, 430 F.3d 560, 563 (2d Cir. 2005) (noting that the “prison mailbox rule” applies “to the filing of civil
complaints” by pro se litigants). In the absence of evidence as to when Plaintiff's Complaint was submitted
for mailing, this Court deems it filed as of July 7, 2020, the date when it was apparently signed. See Lehal
v. Cent. Falls Det. Facility Corp., 13cv3923 (DF), 2019 WL 1447261, at *7 n.11, 19 (S.D.N.Y. Mar. 15, 2019)
(inferring that pro se prisoner gave his complaint to prison officials for mailing on the date it was signed).
5 In light of the pending motion to dismiss, the Law Department requested that it be relieved of its obligation
to ascertain the identities, badges, and addresses of the John Doe Defendants, or, alternatively, that it be
granted a 60-day extension of time from the then-set deadline. (See Dkt. 21.) On March 24, 2021, this Court,
by memo endorsement, ordered that the Law Department's time to identify the John Doe Defendants would
be extended to 60 days after the resolution of the motion to dismiss, should it be denied. (See Dkt. 25.)
6 Specifically, Plaintiff filed the same letter in each of the following cases: Massey v. Smart, et al., No.
20cv09719 (AJN) (OTW) (S.D.N.Y.) (Dkt. 18); Massey v. Sapp, et al., No. 19cv11902 (GBD) (KNF) (S.D.N.Y.)
(Dkt. 57); Massey v. City of New York, et al., No. 20cv07617 (ALC) (S.D.N.Y.) (Dkt. 19); Massey v. City of
New York, et al., No. 20cv07622 (LTS) (RWL) (S.D.N.Y.) (Dkt. 23); Massey v. Holder, et al., No. 20cv08067
(RA) (OTW) (S.D.N.Y.) (Dkt. 18); Massey v. Hernandez, et al., No. 20cv08633 (GHW) (S.D.N.Y.) (Dkt. 13);
Massey v. Bolanos, et al., No. 20cv08592 (LGS) (RWL) (S.D.N.Y.) (Dkt. 22); and Massey v. Iosif Shpits, No.
20cv08828 (LGS) (RWL) (S.D.N.Y.) (Dkt. 26).
7 In its June 21 Order, this Court denied, without prejudice, Plaintiff's request that this Court seek pro bono
counsel to represent him in this action, noting that the pending motion to dismiss was “based on a narrow
issue (lack of exhaustion), as to which the law is well established,” and reasoning that “Plaintiff should be
able to explain to the Court the particular reasons why he apparently took no steps to exhaust the claim he
raises in this case.” (Dkt. 32 ¶ 5.)
8 Although Plaintiff's opposition letter was dated July 21, 2021, it was not uploaded onto the ECF system until
August 13, 2021. (See Dkt. 34.) To account for the two-week delay, this Court set the Moving Defendants’
reply deadline for August 25, 2021. (Dkt. 36.)
9 This Court takes judicial notice of the IGRP. See Sanders v. Cty. of N.Y., No. 16cv7246 (PGG), 2018 WL
3117508, at *4 n.1 (S.D.N.Y. June 25, 2018) (“It is a common practice in this District to take judicial notice
of the version of the IGRP in effect at the time of the events giving rise to [a prisoner's] claim.” (internal
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 92 of 151

Massey v. City of New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 11
quotation marks omitted)). As Directive 3376R-A was in effect on May 5, 2020, it is the governing grievance
procedure in this action. See https://www1.nyc.gov/assets/doc/downloads/directives/Directive_3376R-A.pdf
(accessed Aug. 26, 2021).
10 Prior to the Supreme Court's decision in Ross, district courts in this Circuit asked an additional question in
assessing whether to grant a motion to dismiss for failure to exhaust, the question being “whether special
circumstances ha[d] been plausibly alleged that justif[ied] the prisoner's failure to comply with administrative
procedural requirements.” Hemphill, 380 F.3d at 686. In Ross, however, the Supreme Court rejected this
“special circumstances” exception and reaffirmed the mandatory nature of exhaustion of administrative
remedies, holding that “the PLRA's text suggests no limits on an inmate's obligation to exhaust – irrespective
of any ‘special circumstances.’ ” Ross, 136 S. Ct. at 1856.
11 This Court also notes that, although Plaintiff indicated in the March 7 letter that he had, at some undisclosed
time and in some undisclosed manner, contacted NYC DOC Commissioner Cynthia Brann, that type
of communication would not satisfy the PLRA's exhaustion requirements. See Timmons v. Schriro, No.
14cv6606 (RJS), 2015 WL 3901637, at *3 (S.D.N.Y. June 23, 2015) (“[T]he law is well-settled that informal
means of communicating and pursuing a grievance, even with senior prison officials, are not sufficient
under the PLRA.”); Muhammad v. Pico, No. 02cv1052 (AJP), 2003 WL 21792158, at *8 (S.D.N.Y. Aug.
5, 2003) (“District court decisions in this [C]ircuit have repeatedly held that complaint letters to the DOCS
Commissioner or the facility Superintendent do not satisfy the PLRA's exhaustion requirements.”).
12 Plaintiff's vague assertion in his March 7 letter that he had been “subjected to federal criminal acts that [were]
retaliatory in nature due to [his] extensive federal litigation” (Pl. 3/7/21 Ltr., at 1-2), fares no better, as that
allegation, even when liberally read, fails to set forth any specific threat or act of intimidation by NYC DOC
personnel that could serve to justify Plaintiff's conceded failure to exhaust administrative remedies.
13 Although he has not framed his opposition in this way, this Court also notes that Plaintiff would not be
able to overcome his failure to exhaust by arguing that Defendants should be estopped from asserting the
affirmative defense of lack of exhaustion because, by intimidation or otherwise, they “prevented or inhibited
[Plaintiff] from exhausting his remedies.” Antrobus, 2012 WL 1900542, at *2. Although the Second Circuit has
previously held that “the affirmative defense of exhaustion is subject to estoppel,” Ziemba v. Wezner, 366
F.3d 161, 163 (2d Cir. 2004), it later questioned whether the estoppel doctrine survived the Supreme Court's
decision in Woodford v. Ngo, 548 U.S. 81 (2006), which held that the PLRA requires “proper exhaustion.”
Amador v. Andrews, 655 F.3d 89, 102 (2d Cir. 2011) (“We have questioned whether, in light of Woodford,
the doctrine[ ] of estoppel ... survived.”) Further, as some courts have since observed, “[t]he Supreme Court's
[2016] decision in Ross again put[ ] the availability of estoppel in doubt.” Salmon v. Bellinger, No. 9:14-
CV-0827 (LEK/DJS), 2016 WL 44113382016 WL 4411338, at *5 (N.D.N.Y. July 5, 2016) (noting that the
Supreme Court “made clear [in Ross] that the mandatory nature of the exhaustion required by the PLRA
forecloses judicial discretion to craft exceptions”). In any event, Plaintiff has not alleged that any named
defendant prevented or inhibited him from exhausting his administrative remedies in relation to the incident
in question, see Gottesfeld v. Anderson, No. 18cv10836 (PGG), 2020 WL 1082590, at *8 (S.D.N.Y. Mar. 6,
2020), and his failure to allege Defendants’ personal involvement forecloses the Court's application of the
estoppel doctrine, see Evans v. Aramark Food, No. 14cv6469 (NSR), 2016 WL 1746060, at *3 (S.D.N.Y.
Apr. 28, 2016) (“Where a plaintiff does not allege that a defendant was personally involved in the denial of
grievance forms ..., the defendant will not be estopped from raising the exhaustion defense.”); Rambert v.
Mulkins, No. 11cv7421 (KPF), 2014 WL 2440747, at *12 (S.D.N.Y. May 30, 2014) (“Plaintiff has failed to
allege that Defendants were in any way involved in the lack of grievance forms in the SHU ... Because Plaintiff
has failed to allege any facts demonstrating any personal involvement of Defendants, they are not estopped
from asserting this defense.”).
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 93 of 151

Massey v. City of New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 12
14 Notably, unlike in Taylor, all of the grievances that Plaintiff has attached as exhibits in this case (see Pl.
Opp., Exs. A-Y) reflect that they were, in fact, answered by OCGS staff, in that each one includes an OCGS
timestamp, a grievance reference number, a written-in grievance category (wherein the staff member wrote
whether the grievance constituted a “staff complaint”), and an OCGS staff member signature. Plaintiff's
argument here is thus not that he heard no response to his grievances, but rather that they were not
substantively addressed.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 94 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 5932943
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Matthew John MATAGRANO, Plaintiff,
v.
NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION,
Central New York Psychiatric Center, and New
York State Office of Mental Health, Defendants.
9:19-cv-763 (BKS/DJS)
|
Signed September 12, 2023
Attorneys and Law Firms
For Plaintiff: Amy Jane Agnew, Joshua L. Morrison, Law
Office of Amy Jane Agnew, P.C., 24 Fifth Avenue, Suite 1701,
New York, NY 10011.
For Defendants: Letitia James, Attorney General of the
State of New York, Adrienne J. Kerwin, Assistant Attorney
General, of Counsel, The Capitol, Albany, NY 12224.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief United States District Judge:
I. INTRODUCTION
*1 In this action, Plaintiff Matthew John Matagrano asserts
claims pursuant to Title II of the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq. (“ADA”), and Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701
et seq., against Defendants New York State Department
of Corrections and Community Supervision (“DOCCS”),
Central New York Psychiatric Center (“CNYPC”), and New
York State Office of Mental Health (“OMH”), arising out
of Plaintiff's confinement at Wende Correctional Facility
(“Wende”) and CNYPC. (See Dkt. No. 49 (second amended
complaint)). Presently before the Court is Defendants’ motion
pursuant to Federal Rule of Civil Procedure 56 for summary
judgment as to all of Plaintiff's remaining claims. (Dkt. Nos.
100, 110). Plaintiff opposes Defendants’ motion and cross-
moves for partial summary judgment on his claim against
OMH and CNYPC for failure to reasonably accommodate
him. (Dkt. No. 104). For the following reasons, Defendants’
motion is granted in part and Plaintiff's cross-motion is
denied.
II. FACTS 1
A. Plaintiff's Disability
Plaintiff, who entered Wende Correctional Facility in
December 2013, suffers from bilateral hearing loss. (Dkt. No.
100-23, ¶ 1; Dkt. No. 104-4, ¶ 1; Dkt. No. 100-14, at 28).
Because Plaintiff's mother was completely deaf, Plaintiff's
first language was American Sign Language (“ASL”). (Dkt.
No. 111, ¶¶ 2–3; Dkt. No. 100-14, at 28). Plaintiff can also
speak English. (Dkt. No. 100-14, at 28, 102). Plaintiff asserts
that he has always had poor hearing and that his hearing has
“steadily declined” throughout his life. (Dkt. No. 111, ¶ 5).
DOCCS has always housed Plaintiff in Sensorial Disabled
Units or Programs when Plaintiff was in a facility's general
population. (Id. ¶ 6). Upon Plaintiff's incarceration in
2013, DOCCS assessed his hearing impairment as “HL20,”
meaning he has significant hearing loss. (Dkt. No. 105-1,
at 1; Dkt. No. 105-6). 2 Plaintiff has used assistive devices
and other technology to address his hearing loss including
hearing aids, TTY telephones, a shake awake alarm, a phone
amplifier, a T-coil induction loop, and a pocket talker.
(Dkt. No. 100-14, at 31–32, 38, 41–42; see also Dkt. No.
100-15 (Plaintiff's receipts for reasonable accommodations)).
Plaintiff's use of a pocket talker had to be under DOCCS staff
supervision. (Dkt. No. 100-20, ¶ 8).
B. ASL in the Wende Mess Hall
*2 On or about November 20, 2015, Plaintiff and an inmate
who is deaf, Bismark Lithgow, were speaking in ASL in the
Wende mess hall. (Dkt. No. 111, ¶ 16; Dkt. No. 100-14, at
94–95). According to Plaintiff, a corrections officer became
“very disrespectful and boisterous” and told Plaintiff and Mr.
Lithgow that they had to cease communicating in ASL in the
mess hall. (Dkt. No. 111, ¶ 17; Dkt. No. 100-14, at 95–96). A
sergeant then told Plaintiff that he could not use sign language
in the mess hall because he was “distracting [the] officers”
and it “looks like gang signs.” (Dkt. No. 100-14, at 96).
Plaintiff filed a grievance complaining that the prohibition
on using ASL in the mess hall was discriminatory because
ASL was the only language prohibited. (Id. at 96–97; Dkt.
No. 100-16, at 4). When DOCCS investigated the grievance,
the staff denied harassing or discriminating against Plaintiff
or “informing hearing impaired inmates that they could not
use sign language in the messhall.” (Dkt. No. 100-16, at 3).
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 95 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Plaintiff testified at his deposition that, after the November
2015 incident, using sign language in the mess hall was
“always a problem” because it distracted the staff and made
them nervous. (Dkt. No. 100-14, at 97–98). Plaintiff testified
that staff would “threaten” to issue misbehavior reports
for signing in the mess hall but that he never received a
misbehavior report. (Id. at 99). Plaintiff acknowledged at
his deposition that he used ASL in the mess hall “maybe a
week or so” after the November 20, 2015 incident. (Id.). But
Plaintiff also asserts that there has been an “unofficial policy
against using ASL in the mess hall ever since” November
2015 and that inmates will “attempt to sneak if no [corrections
officer] is watching, but do not do so often.” (Dkt. No.
111, ¶¶ 18, 24–26). According to Danyelle Hodges, Deputy
Superintendent of Security at Wende, it is “not true” that ASL
is banned in the Wende mess hall. (Dkt. No. 112-4, ¶¶ 1–
2, 5). Unless “all talking in the mess hall is prohibited by
staff for security reasons on a given day,” any inmate “may
communicate in any language, including ASL.” (Id. ¶ 3).
C. Plaintiff's Stay at CNYPC
Plaintiff was transferred from Wende to CNYPC on October
5, 2017 for inpatient mental health treatment following
a suicide attempt and was discharged back to Wende
on January 31, 2018. (Dkt. No. 100-19, ¶ 8; Dkt. No.
100-1, ¶ 20). CNYPC “provides in-patient mental health
treatment in a secure facility to incarcerated individuals
in [DOCCS] custody.” (Dkt. No. 100-1, ¶ 3). According
to Christopher Boydston, who is employed by OMH at
CNYPC as Inpatient Director, CNYPC “is not a correctional
facility and does not provide programming like that provided
in DOCCS.” (Id. ¶ 4). 3 CNYPC's policy on “Reasonable
Accommodations for Patients/Residents with Disabilities”
set forth reasonable accommodation screening procedures
and provided that a patient who “feel[s] the need for a
reasonable accommodation ... should make a request in
person or in writing through any member of the OMH
staff.” (Dkt. No. 100-3, at 4–6). The policy also listed certain
assistive devices that “will be made available as needed and
clinically indicated,” including TTY, a telephone amplifier or
T-coil, closed captioning, and sound amplification. (Id. at 7–
8 (emphasis omitted)).
*3 Plaintiff's treatment plan included “individual supportive
counseling once per week and otherwise as needed to
support Plaintiff with symptom management and discharge
planning.” (Dkt. No. 100-23, ¶ 21; Dkt. No. 104-4, ¶ 21).
Plaintiff asserts that he was “very clear” in his original
medical assessment that he “would need a T coil loop and/
or pocket talker to hear programming” and that he also
informed his therapist and psychiatrist that he needed a T-
coil loop or pocket talker “multiple times.” (Dkt. No. 111,
¶¶ 30–32). 4 Plaintiff was told that “they did not ‘have
one here.’ ” (Id. ¶ 31). Plaintiff also asserts that he asked
to use a TTY multiple times “but was told it was on the
other side of the building.” (Id.; see Dkt. No. 100-14, at
59). According to Defendants, Plaintiff had the use of his
hearing aids, a telephone amplifier, closed captioning, and
preferred seating while at CNYPC. (See Dkt. No. 101-1, at
114 (psychological evaluation dated January 18, 2018 stating
that Plaintiff “currently receives” these accommodations)).
According to Plaintiff, however, CNYPC “did not have closed
captioning on the vast majority of the movies and treatment
videos” and preferred seating “can help in certain situations”
but “does not cure [his] hearing disabilities.” (Dkt. No. 111,
¶¶ 38–39).
1. Hearing Aid Batteries
At Plaintiff's October 18, 2017 individual counseling session,
he told his therapist that he was “having a hard time
hearing.” (Dkt. No. 101-1, at 232 (therapist's progress note)).
Plaintiff had received his hearing aids but the batteries were
dead and the “nurse did not have the right size to replace
them.” (Id.). The therapist told Plaintiff “things he can do to
help in the meantime such as sitting in the front of class so he
can hear the facilitator, notify the staff he is hard of hearing[,]
and ask them to speak up.” (Id.). Plaintiff reported to his
therapist that “at times the TV is on closed caption so he is
able to watch tv that way.” (Id.). The therapist's progress note
included, as part of the follow-up plan, to “[f]ollow up with
nursing regarding hearing aids.” (Id. at 233). On October 25,
2017, Plaintiff reported that “he received his hearing aid and
things are much better now that he has his hearing aids.” (Id.
at 240). On October 31, 2017, he reported to his therapist that
“groups were going well and he [wa]s able to hear as well as
able to hear in the dayroom.” (Id. at 256). 5
2. Treatment Mall and Religious Services
Plaintiff testified at his deposition that CNYPC had a group
room called the “Treatment Mall” which contained a “general
library,” school for young patients, video games, and movies.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 96 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
(Dkt. No. 100-14, at 60–63). Plaintiff also testified that
Narcotics Anonymous and Alcoholics Anonymous meetings
would take place in the Treatment Mall in the evening or late
afternoon. (Id. at 63). Other than participating in treatment
activities, (see Dkt. No. 100-2 (CNYPC records of Plaintiff's
programming attendance)), Plaintiff spent “most of [his]
time” watching movies, (Dkt. No. 100-14, at 60). Plaintiff
asserts that he “spoke with the staff many, many times about
[his] need for closed captioning or even subtitles.” (Dkt.
No. 111, ¶ 38; see also Dkt. No. 100-14, at 68–69 (Plaintiff
agreeing at his deposition that “sometimes” the movies had
closed captioning and “sometimes they didn't”)).
*4 Plaintiff asserts that he also spent a lot of time in a
“day room” which was “smaller than the Treatment Mall
area,” making it easier for Plaintiff to hear. (Dkt. No. 111, ¶
37). Plaintiff also testified that he attended Catholic religious
services in a room in the basement. (Dkt. No. 100-14, at
63–64). Plaintiff, who was raised Catholic, understood the
prayers and “the process” but had trouble understanding the
priest's homily. (Id.).
3. Plaintiff's Letters and CNYPC's Response
In a letter dated November 30, 2017 which was ultimately
marked received by “Risk Management” at CNYPC, Plaintiff
wrote that he was “bilaterally hearing impaired” and that
CNYPC “should have been notified of the sensorial disability
as a matter of routine, as well as [his] medically approved
reasonable accommodations” that he had at Wende. (Dkt. No.
100-4, at 2). Plaintiff complained that he could not hear on
the “patient phone” even with his hearing aids and that he
could not hear the “DVD instructional disc or many times
the facilitator” during “therapeutic treatment mall.” (Id. at 3).
Plaintiff wrote that he had “expressed these concerns to [staff]
and [his] assigned primary care providers.” (Id.). Plaintiff
requested that he be returned to DOCCS and opined that there
was “currently no need for acute inpatient care.” (Id. at 4).
In a note to the Director of Risk Management dated December
11, 2017, Plaintiff reported that he had sent to the hospital
director a “written request for reasonable accommodation
for [his] bilateral hearing impairment (CCTV, TTY/TDD,
Preferred Seating),” but had not received a response. (Dkt.
No. 100-5, at 2). Also in December, Plaintiff wrote a letter
to the Director of Inpatient Risk Management and stated that
he “need[ed] certain accommodations/auxiliary aids so that
[he] can function in program(s).” (Dkt. No. 100-6, at 3).
Plaintiff wrote that it was “difficult for [him] to hear during
the treatment mall for a lot [of] reasons.” (Id.). Plaintiff again
said that his “ultimate goal [wa]s to return to DOCCS custody
(ASAP).” (Id. at 2; see also Dkt. No. 100-7 (December 8,
2017 letter in which Plaintiff states that he “require[s] specific
reasonable accommodations in order to function in daily
life”)).
Risk Management reviewed Plaintiff's complaints and
reached out to his treatment team. (Dkt. No. 100-10
(memorandum dated December 20, 2017 summarizing results
of investigation); Dkt. No. 100-11 (email correspondence
between a Risk Management Specialist and members of
Plaintiff's treatment team regarding his complaints); Dkt. No.
100-9 (memorandum dated December 20, 2017 and addressed
to Plaintiff responding to his concerns)). Plaintiff's primary
therapist noted that Plaintiff reported hearing difficulty
“during the first week or two after his admission” due to
dead batteries for his hearing aids, but that Plaintiff reported
he was “no longer having any difficulty hearing while in
groups” once he received new batteries. (Dkt. No. 100-10,
at 2). The therapist reported that she had “provided several
phone calls for [Plaintiff] during which time he has not
appeared to have any issues with hearing.” (Id. at 2–3). 6
Plaintiff's nurse prescriber similarly reported that “she had not
been made aware of any difficulties with hearing.” (Id. at 3).
Risk Management concluded that Plaintiff had not identified
“any hearing difficulties or concerns since his first week or
so after being admitted” and that the concerns “that he did
identify during the first week were addressed immediately by
providing ... new hearing aid batteries.” (Id.).
D. Closure of the Wende “Resource Room”
*5 The “Resource Room” for hearing impaired inmates
at Wende was designed to provide inmates with sensorial
disabilities “additional areas [to] take part in learning or
activities for which special equipment was necessary.” (Dkt.
No. 100-20, ¶ 12). Plaintiff testified that the Resource Room
has movies, sign language teaching aids, and computers.
(Dkt. No. 100-14, at 49–51). The Resource Room was closed
on June 25–29 and July 2–6, 2018 because of a staffing
shortage. (Dkt. No. 100-20, ¶¶ 17–19; Dkt. No. 100-14, at
91 (Plaintiff testifying that the Resource Room was closed
those dates because “no one was there to open”)). According
to Christopher Zaluski, an Offender Resource Coordinator at
Wende, the closure of the Resource Room on these days “did
not preclude Plaintiff from taking part in any activity available
to the general population” and “[n]one of the assistive devices
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 97 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
issued to, or needed by, Plaintiff for other programming w[as]
locked in the Resource Room.” (Dkt. No. 100-20, ¶¶ 21–22).
E. September 2019 Program Call-Out
Plaintiff alleges in the second amended complaint that he
was unable to “attend his mandatory Program Committee
call out to participate in the selection of his programming”
on September 10, 2019 because he did not have his hearing
aids at the time and was not provided with a pocket talker.
(Dkt. No. 49, ¶¶ 132–35). According to Zaluski, Wende
records indicate that Plaintiff was scheduled for a call out
on September 10, 2019 because Plaintiff “needed a program
assignment.” (Dkt. No. 110-5, ¶ 9). Plaintiff “did come to that
call out” and was placed in Alcohol and Substance Abuse
Treatment (“ASAT”) programming, which was on his list of
“required programming.” (Id. ¶¶ 9–10). Plaintiff “refused to
participate in ASAT.” (Id. ¶ 11).
Plaintiff did not file or appeal a grievance alleging that he was
not provided a pocket talker for use in a September 2019 call
out meeting or that he was denied the ability to participate in
the selection of his programming. (Dkt. Nos. 110-1, 110-2,
110-4 (lists of grievances filed by Plaintiff)).
III. STANDARD OF REVIEW
Under Rule 56(a), summary judgment may be granted only
if all the submissions taken together “show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of demonstrating
“the absence of a genuine issue of material fact.” Celotex,
477 U.S. at 323, 106 S.Ct. 2548. A fact is “material” if it
“might affect the outcome of the suit under the governing
law,” and is genuinely in dispute “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.
2005) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). The
movant may meet this burden by showing that the nonmoving
party has “fail[ed] to make a showing sufficient to establish
the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322, 106 S.Ct. 2548; see also Selevan
v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013)
(explaining that summary judgment is appropriate where
the nonmoving party fails to “ ‘come forth with evidence
sufficient to permit a reasonable juror to return a verdict in
his or her favor on’ an essential element of a claim” (quoting
In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d
Cir. 2010))).
If the moving party meets this burden, the nonmoving party
must “set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 248, 250, 106 S.Ct.
2505; see also Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548;
Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When
ruling on a summary judgment motion, the district court must
construe the facts in the light most favorable to the non-
moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Dallas Aerospace,
Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still,
the nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and cannot
rely on “mere speculation or conjecture as to the true nature
of the facts to overcome a motion for summary judgment,”
Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)
(citing Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d
Cir. 1985)). Furthermore, “[m]ere conclusory allegations or
denials ... cannot by themselves create a genuine issue of
material fact where none would otherwise exist.” Hicks v.
Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v.
Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).
IV. DISCUSSION
*6 Following prior motion practice and stipulations of
voluntary discontinuance, 7 Plaintiff asserts claims under the
ADA and Rehabilitation Act against Defendants premised on
(1) the alleged ban on the use of ASL in the Wende mess
hall, (2) the failure to reasonably accommodate Plaintiff at
CNYPC, (3) the closure of the Wende Resource Room in June
and July 2018, and (4) the failure to accommodate Plaintiff
with a pocket talker for a September 2019 program call-out
at Wende. Defendants move for summary judgment as to
all of Plaintiff's remaining claims. (Dkt. Nos. 100, 110). 8
Plaintiff opposes Defendants’ motion and cross-moves for
partial summary judgment as to Plaintiff's claim that OMH
and CNYPC failed to reasonably accommodate him while he
was at CNYPC. (Dkt. No. 104).
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 98 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
A. Legal Standards for ADA and Rehabilitation Act
Claims
Title II of the ADA 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
the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. A qualified individual with a disability is defined
as “an individual with a disability who, with or without
reasonable modifications to rules, policies, or practices, ...
meets the essential eligibility requirements for ... participation
in programs or activities provided by a public entity.” Id.
§ 12131(2). The term “public entity” includes a state or
local government body or any instrumentality thereof. Id. §
12131(1). Similarly, Section 504 of the Rehabilitation Act
provides, in pertinent part, that “[n]o otherwise qualified
individual with a disability ... shall, solely by reason of her or
his disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any
program or activity” receiving federal financial support. 29
U.S.C. § 794(a).
“As the standards for actions under [Title II] of the ADA and
the Rehabilitation Act are generally equivalent, [the Court]
analyze[s] such claims together.” Dean v. Univ. at Buffalo
Sch. of Med. & Biomedical Scis., 804 F.3d 178, 187 (2d
Cir. 2015) (citing Harris v. Mills, 572 F.3d 66, 73–74 (2d
Cir. 2009)). To establish a prima facie violation under the
ADA and Rehabilitation Act, a plaintiff must demonstrate
“(1) that [ ]he is a ‘qualified individual’ with a disability;
(2) that the defendants are subject to one of the Acts; and
(3) that [ ]he was ‘denied the opportunity to participate in or
benefit from defendants’ services, programs, or activities, or
was otherwise discriminated against by defendants, by reason
of h[is] disability.’ ” Id. (citation omitted). “Discrimination
under the third prong can include ‘failure to make a
reasonable accommodation’ for the inmate.” McFadden v.
Noeth, 827 F. App'x 20, 28 (2d Cir. 2020) (summary order)
(citation omitted); Powell v. Nat'l Bd. of Med. Exam'rs,
364 F.3d 79, 85 (2d Cir. 2004) (noting that both the ADA
and the Rehabilitation Act “prohibit discrimination against
qualified disabled individuals by requiring that they receive
‘reasonable accommodations’ that permit them to have access
to and take a meaningful part in public services and public
accommodations”), corrected, 511 F.3d 238 (2d Cir. 2004).
B. Availability of Damages Under the ADA and
Rehabilitation Act
*7 Defendants argue that they are entitled to summary
judgment on Plaintiff's ADA and Rehabilitation Act
claims because compensatory damages, the only relief
Plaintiff seeks, are unavailable. (Dkt. No. 100-24, at 11). 9
Plaintiff responds that only emotional distress damages are
unavailable under the Rehabilitation Act and that he may
recover nominal damages. (Dkt. No. 104-5, at 21–22).
In Cummings v. Premier Rehab Keller, P.L.L.C., the Supreme
Court held that “emotional distress damages are not
recoverable” under the Rehabilitation Act and the Affordable
Care Act, the two “Spending Clause antidiscrimination
statutes” under consideration in that case. ––– U.S. ––––,
142 S. Ct. 1562, 1576, 212 L.Ed.2d 552 (2022). The Court
reasoned that “Spending Clause legislation operates based on
consent” and therefore that the “scope of available remedies”
depends on whether a prospective funding recipient would
have been aware that it might face such liability. Id. at 1570–
71. Because it is “hornbook law that ‘emotional distress is
generally not compensable in contract,’ ” the Court could not
“treat federal funding recipients as having consented to be
subject to damages for emotional distress,” and such damages
therefore are not recoverable under the Rehabilitation Act
and Affordable Care Act. Id. at 1571–72 (citation omitted).
Since Cummings, district courts in this Circuit have held
that emotional distress damages are likewise not recoverable
under Title II of the ADA, which expressly incorporates the
remedies of the Rehabilitation Act, even though the ADA
was not enacted pursuant to the Spending Clause. 42 U.S.C.
§ 12133 (“The remedies, procedures, and rights set forth in
[section 505 of the Rehabilitation Act] shall be the remedies,
procedures, and rights this subchapter provides to any person
alleging discrimination on the basis of disability in violation
of [42 U.S.C. § 12132].”); see, e.g., Doherty v. Bice, No. 18-
cv-10898, 2023 WL 5103900, at *6, 2023 U.S. Dist. LEXIS
139187 (S.D.N.Y. Aug. 9, 2023) (“[A]ll other federal courts
that have apparently considered this issue have likewise found
that emotional distress damages are not available under the
ADA because, as the Cummings Court concluded, they are not
available under the Rehabilitation Act.” (collecting cases));
Williams v. Colo. Dep't of Corr., No. 21-cv-2595, 2023 WL
3585210, at *5–6 & n.5, 2023 U.S. Dist. LEXIS 89153 (D.
Colo. May 22, 2023) (collecting cases).
Accordingly, the Court holds that Plaintiff may not recover
emotional distress damages on his Rehabilitation Act and
ADA claims. 10 Plaintiff nonetheless argues that dismissal
of his remaining claims is not warranted because “[o]ther
damages are available to Plaintiff—in particular, nominal
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 99 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 6
damages.” (Dkt. No. 104-5, at 21–22). Defendants have
not addressed the availability of nominal damages under
the Rehabilitation Act or the ADA, other than suggesting
that such damages were not sought in the second amended
complaint or Plaintiff's Rule 26 initial disclosures. (Dkt.
No. 112-6, at 3). However, Plaintiff's prayer for relief seeks
compensatory damages and “such other relief as the court
may deem just and proper,” (Dkt. No. 49, at 35), and
his failure to specifically request nominal damages in the
complaint is not determinative, see Fantasia v. Montefiore
New Rochelle, No. 19-cv-11054, 2022 WL 20540940, at *5,
2022 U.S. Dist. LEXIS 107935 (S.D.N.Y. June 16, 2022)
(noting that a plaintiff “may seek nominal damages at trial
even if she did not explicitly request nominal damages in
her complaint” (citations omitted)). At least some district
courts have concluded that nominal damages are available
under the Rehabilitation Act and ADA even though emotional
distress damages are not recoverable. See id., 2022 WL
20540940, at *5, 2022 U.S. Dist. LEXIS 107935 (concluding
that nominal damages are available under the Rehabilitation
Act because “nominal damages are a generally accepted
remedy in contract actions”); Vega-Ruiz v. Northwell Health
Sys., No. 19-cv-537, 2023 WL 2587508, at *3, 2023 U.S.
Dist. LEXIS 47769 (E.D.N.Y. Mar. 20, 2023) (finding that
the plaintiff “still has a claim for nominal damages” under
the Rehabilitation Act); but see K.G. v. Woodford Cnty.
Bd. of Educ., No. 18-cv-555, 2022 WL 17993127, at *3–
4, 2022 U.S. Dist. LEXIS 233069 (E.D. Ky. Dec. 29, 2022)
(discussing a lack of uniformity on the issue); Hacker v. Dart,
62 F.4th 1073, 1087 (7th Cir. 2023) (noting that a claim for
nominal damages “can present some challenging legal issues,
including whether Congress authorized them under the ADA
or the Rehabilitation Act”).
*8 Thus, because it is not clear that there is no relief
to which Plaintiff may be entitled should he prevail on
his Rehabilitation Act and ADA claims, the Court denies
Defendants’ motion for summary judgment on this basis.
C. Vicarious Liability Under the ADA and
Rehabilitation Act
Defendants next argue that they are entitled to summary
judgment because neither Title II of the ADA nor the
Rehabilitation Act provides for vicarious liability of public
entities. (Dkt. No. 100-24, at 12–14). Plaintiff responds that
entities may be held liable for damages under the ADA and
Rehabilitation Act under the “appropriate official theory” set
forth in Gebser v. Lago Vista Independent School District, 524
U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). (Dkt. No.
104-5, at 22–24).
As Defendants point out, a number of Circuit Courts of
Appeals have held that Title II of the ADA and the
Rehabilitation Act do not allow for recovery based an entity's
vicarious liability for the acts of its employees. See, e.g., Jones
v. City of Detroit, 20 F.4th 1117, 1119, 1121 (6th Cir. 2021)
(noting that the remedies available for violations of Title II of
the ADA and the Rehabilitation Act are “coextensive” with
those for Title VI, and holding that because “Title VI does
not allow vicarious liability, neither do these provisions of
the ADA or the Rehabilitation Act”); Ingram v. Kubik, 30
F.4th 1241, 1256–59 (11th Cir. 2022) (holding that vicarious
liability is unavailable under Title II of the ADA). Neither
the Supreme Court nor the Second Circuit has expressly
addressed whether vicarious liability is available under Title
II and the Rehabilitation Act. See City & County of San
Francisco v. Sheehan, 575 U.S. 600, 610, 135 S.Ct. 1765,
191 L.Ed.2d 856 (2015) (declining to decide whether a public
entity “can be held vicariously liable for money damages
for the purposeful or deliberately indifferent conduct of its
employees”). The Court need not decide whether Defendants
can be held vicariously liable because, as Plaintiff points out,
Gebser and Second Circuit caselaw provide for a different
theory of liability which directly holds an entity responsible
and is distinct from vicarious liability.
In Gebser, the Supreme Court held that Title IX 11 does not
“permit a damages recovery against a school district for a
teacher's sexual harassment of a student based on principles
of respondeat superior or constructive notice, i.e., without
actual notice to a school district official.” 524 U.S. at 285,
118 S.Ct. 1989. Instead, the Supreme Court held that, “in
cases ... that do not involve official policy of the recipient
entity,” “a damages remedy will not lie under Title IX unless
an official who at a minimum has authority to address the
alleged discrimination and to institute corrective measures on
the recipient's behalf has actual knowledge of discrimination
in the recipient's programs and fails adequately to respond.”
Id. at 290, 118 S.Ct. 1989. Further, the “response must amount
to deliberate indifference to discrimination.” Id. Although
Defendants suggest that Gebser is incompatible with other
cases holding vicarious liability is not available under Title
II and the Rehabilitation Act, the test set forth in Gebser
does not represent a species of vicarious liability, but rather
a manner of holding the entity itself directly liable based
on actual notice of and a deliberately indifferent response to
discrimination. See Zeno v. Pine Plains Cent. Sch. Dist., 702
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 100 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 7
F.3d 655, 664–65 (2d Cir. 2012) (“In certain circumstances,
courts view actions of a third party as intentional violations
by the funding recipient itself.” (citing, inter alia, Gebser)).
Indeed, Gebser itself held that a damages award under Title
IX could not be premised on a theory of vicarious liability. 524
U.S. at 285, 118 S.Ct. 1989. Thus, even assuming Defendants
are correct that Plaintiff may not prevail on his claims on a
theory of vicarious liability, that does not end the inquiry.
*9 The Second Circuit has held that “monetary damages are
recoverable only upon a showing of an intentional violation”
of the Rehabilitation Act. Loeffler v. Staten Island Univ.
Hosp., 582 F.3d 268, 275 (2d Cir. 2009). An intentional
violation is shown by “deliberate indifference to the strong
likelihood [of] a violation” and does not require “personal
animosity or ill will.” Id. (citation omitted). Intentional
discrimination “may be inferred when a ‘policymaker acted
with at least deliberate indifference to the strong likelihood
that a violation of federally protected rights will result from
the implementation of the challenged policy or custom.’ ”
Id. (citation, brackets, and ellipses omitted). The standard
for deliberate indifference in this context is borrowed from
Gebser: damages are not recoverable unless
an official who at a minimum
[1] has authority to address the
alleged discrimination and to institute
corrective measures on the recipient's
behalf [2] has actual knowledge
of discrimination in the recipient's
programs and [3] fails adequately to
respond.
Biondo v. Kaleida Health, 935 F.3d 68, 73–74 (2d Cir.
2019) (quoting Loeffler, 582 F.3d at 276). Such deliberate
indifference “must reflect a ‘deliberate choice among various
alternatives’ and may not be inferred from mere ‘negligence
or bureaucratic inaction.’ ” Id. (quoting Loeffler, 582 F.3d at
276).
Here, Plaintiff argues in conclusory fashion that “Defendants’
employees were, in fact, appropriate officials” whose failure
to adequately respond satisfies the deliberate indifference
standard. (Dkt. No. 104-5, at 23–24). Defendants reply that
“Plaintiff can point to no evidence that any ‘official capacity
defendant’ (of which there are none in this case) had actual
notice of alleged discrimination ..., had the authority to
ameliorate it[,] and took no action.” (Dkt. No. 112-6, at 3–
4). 12 In the absence of more detailed briefing, the Court
cannot assess any arguments about the evidence for deliberate
indifference in this case.
Moreover, assuming nominal damages are both the only
remedy Plaintiff seeks and recoverable under the ADA and
Rehabilitation Act, see supra Section IV.B, the parties have
not addressed what showing Plaintiff is required to make
to recover nominal damages. In other words, the parties
have not addressed whether Plaintiff could recover nominal
damages by proving only a technical violation of the statutes,
or rather whether he is required to prove an intentional
violation as he would be to recover compensatory damages.
See Berry-Mayes v. N.Y.C. Health & Hosps. Corp., 712 F.
App'x 111, 112 n.1 (2d Cir. 2018) (summary order) (holding
that argument about nominal damages was forfeited and
therefore considering only whether the plaintiff “sufficiently
demonstrated the deliberate indifference necessary for
compensatory damages” in case involving the ADA and
Rehabilitation Act); Hejmej v. Peconic Bay Med. Ctr., No.
17-cv-782, 2023 WL 4373628, at *2–3, 2023 U.S. Dist.
LEXIS 116145 (E.D.N.Y. July 6, 2023) (deferring decision
on whether the plaintiffs “are required to show Defendants’
deliberate indifference in order to recover nominal damages
under the Rehabilitation Act”); Francois v. Our Lady of the
Lake Hosp., Inc., 8 F.4th 370, 379 (5th Cir. 2021) (noting
that the plaintiff-appellant “ha[d] made no attempt to argue
that his nominal-damages claims, if any exist, are not subject
to the same intentional-discrimination standard as a claim
for compensatory monetary damages”); Lockwood v. Our
Lady of the Lake Hosp., Inc., 467 F. Supp. 3d 435, 438
(M.D. La. 2020) (finding that the plaintiffs “could recover
nominal damages if they proved intentional discrimination
on the part of the defendant”); Nix v. Advanced Urology
Inst. of Ga., PC, No. 21-10106, 2021 WL 3626763, at *3,
2021 U.S. App. LEXIS 24467 (11th Cir. Aug. 17, 2021)
(rejecting the plaintiff's argument that she was entitled to
a jury trial on nominal damages “even in the absence of
intentional discrimination” and suggesting that intentional
discrimination was a “necessary element of [the plaintiff's]
civil rights claim” which she could not prove).
*10 In sum, the Court concludes that Defendants’ argument
about vicarious liability does not warrant summary judgment
on any claim.
D. Use of ASL in the Wende Mess Hall
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 101 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 8
Defendants move for summary judgment on Plaintiff's ADA
and Rehabilitation Act claims relating to the use of ASL in
the Wende mess hall. (Dkt. No. 100-24, at 9–11, 15–16).
1. Timeliness
Defendants first argue that Plaintiff's claim based on his being
directed not to use ASL in the Wende mess hall is untimely.
(Id. at 9–11). The parties appear to agree that Plaintiff fully
exhausted his grievance relating to the November 2015 ASL
incident on February 3, 2016, and that the three-year statute
of limitations period therefore expired on February 3, 2019
—before Plaintiff commenced this lawsuit on June 27, 2019.
(See id.). Defendants argue that the continuing violation
doctrine “does not operate to save Plaintiff's untimely claim”
because Plaintiff testified at his deposition that he was able
to use ASL in the Wende mess hall within a week of the
November 2015 incident and he can therefore “pinpoint” the
exact days the alleged violation occurred and ended. (Id. at
10). Plaintiff responds that the continuing violation doctrine
applies to Plaintiff's claim because Plaintiff asserts that the
“ban on hand gestures ... continues to this day.” (Dkt. No.
104-5, at 16–17).
Although Plaintiff did testify at his deposition that he used
ASL in the mess hall approximately one week after the
November 2015 incident, (Dkt. No. 100-14, at 99), that was
not the entirety of his testimony. He also testified that using
sign language in the mess hall was “always a problem” after
the incident and that staff would threaten misbehavior reports.
(Id. at 98–99). Plaintiff also asserted in his declaration that
there has been an “unofficial policy against using ASL in the
mess hall ever since” November 2015 and that inmates will
“attempt to sneak” signing if no officer is watching. (Dkt. No.
111, ¶¶ 18, 24–26). Thus, construing the evidence in the light
most favorable to Plaintiff, there is a genuine issue of material
fact as to whether the alleged prohibition on the use of ASL in
the Wende mess hall continued throughout Plaintiff's stay at
Wende such that the continuing violation doctrine might apply
and render the claim timely. Defendants therefore have not
met their burden at this stage of demonstrating that Plaintiff's
claim is untimely.
2. Exhaustion and Pleadings
Defendants argue that Plaintiff's claim related to an ongoing
ban on ASL in the Wende mess hall should be dismissed
because Plaintiff did not grieve such a claim pursuant to
the DOCCS Incarcerated Grievance Program or plead such
a claim in the second amended complaint. (Dkt. No. 112-6,
at 6–8). Defendants raised these arguments in their reply
brief, in response to Plaintiff's argument that the ban on ASL
in the Wende mess hall “continues to this day.” (Dkt. No.
104-5, at 16). While “[a]rguments made for the first time in
a reply brief need not be considered by a court,” Ruggiero
v. Warner-Lambert Co., 424 F.3d 249, 252 (2d Cir. 2005)
(citation omitted), the Court has considered these arguments
in order to make a full record.
*11 Defendants argue that the only grievance Plaintiff filed
related to the use of ASL in the Wende mess hall was after the
isolated incident in November 2015 and that such grievance
“did not complain about an ongoing ASL ‘ban.’ ” (Dkt. No.
112-6, at 7 & n.3; see Dkt. No. 100-16 (grievance packet
for grievance WDE-41583-15)). The grievance packet from
November 2015 submitted to the Court contains Plaintiff's
“Appeal Statement” in which he states that the “prohibition
o[n] using ASL in the messhall when hearing inmates [are]
allowed to verbally communicate is discrimination,” (Dkt.
No. 100-16, at 4), but does not contain a copy of the
original grievance itself. Accordingly, without knowing the
contents of Plaintiff's grievance, the Court could not find
that Defendants have met their burden of demonstrating their
entitlement to summary judgment on Plaintiff's ASL claim for
failure to exhaust his administrative remedies.
Defendants also argue that “nothing in the [second amended
complaint] alleges an ‘ASL ban’ in the Wende mess hall”
and that any “evidence offered relating to an alleged ‘ASL
ban’ should be disregarded.” (Dkt. No. 112-6, at 6–7).
However, Plaintiff alleged that “DOCCS allows non-hearing
impaired/deaf inmates to communicate in the mess hall in
any language” while Plaintiff “and his deaf counterparts were
not allowed to use ASL in the mess hall.” (Dkt. No. 49,
¶ 50). Plaintiff specifically alleges that the “violation was
on-going ... as at no time were [Plaintiff] and his hearing-
impaired and deaf cohort allowed to communicate with
ASL in the mess hall of Wende without risk of receiving a
disciplinary ticket.” (Id. ¶ 52). The Court therefore rejects
Defendants’ argument that Plaintiff did not plead an ongoing
prohibition on the use of ASL in the Wende mess hall.
3. Disparate Impact
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 102 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 9
Defendants argue that they are entitled to summary judgment
on Plaintiff's ADA and Rehabilitation Act claims relating
to being told to stop using ASL in the Wende mess hall
because (1) there is no evidence that Plaintiff's “primary way
of communicating is through ASL” and therefore Plaintiff
cannot establish that he was directed to stop using ASL
in the mess hall “because of his disability,” and (2) any
attempt by DOCCS employees to prevent the use of ASL in
the mess hall was “motivated by security efforts to prevent
gang communication” and not by discrimination. (Dkt. No.
100-24, at 15–16). Plaintiff responds that this claim relies on
a disparate impact theory and Defendants are not entitled to
summary judgment. (Dkt. No. 104-5, at 15–16).
To establish a prima facie case of discrimination under Title II
of the ADA or the Rehabilitation Act under a disparate impact
theory, a plaintiff “must demonstrate ‘(1) the occurrence of
certain outwardly neutral practices, and (2) a significantly
adverse or disproportionate impact on persons of a particular
type produced by the defendant's facially neutral acts or
practices.’ ” B.C. v. Mount Vernon Sch. Dist., 837 F.3d
152, 158 (2d Cir. 2016) (citation omitted). At the summary
judgment stage, “plaintiffs are ordinarily required to include
statistical evidence to show disparity in outcome between
groups.” Id. (citation omitted). Although the plaintiff “need
not show discriminatory intent under this theory, it must
prove that the practice ‘actually or predictably results in
discrimination,’ ” and there must be a “causal connection
between the policy at issue and the discriminatory effect.”
Quad Enters. Co., LLC v. Town of Southold, 369 F. App'x
202, 206 (2d Cir. 2010) (summary order) (citation and ellipses
omitted). 13
*12 Here, there is an issue of fact as to whether the use of
ASL was banned in the Wende mess hall between November
20, 2015 and Plaintiff's transfer to Sullivan Correctional
Facility in January 2020. 14 Plaintiff argues that it “can be
inferred that the unwritten policy was against hand gestures
in the mess hall” and that this ban “had a disparate impact on
ASL speakers.” (Dkt. No. 104-5, at 15). The Court agrees that
there is evidence such that a disparate impact claim, which
Defendants did not squarely address, survives summary
judgment. Assuming there was a policy that hand signals, or
ASL in particular, could not be used in the Wende mess hall,
a jury could reasonably conclude that such a policy has a
“significantly adverse or disproportionate impact” on inmates
who are deaf or hard of hearing—including Plaintiff—by
restricting their ability to communicate with other inmates.
B.C., 837 F.3d at 158; see Forsyth v. Univ. of Ala., Bd. of
Trs., No. 20-12513, 2021 WL 4075728, at *6, 2021 U.S. App.
LEXIS 26945 (11th Cir. Sept. 8, 2021) (noting that “it may
not be necessary to provide statistical data” when assessing
disparate impact claims related to disability”).
Accordingly, the Court concludes that there is record evidence
with which Plaintiff could prove a technical violation of the
ADA and Rehabilitation Act. 15
E. Accommodations at CNYPC
Defendants argue that Plaintiff cannot establish a violation
of the ADA or Rehabilitation Act because he cannot prove
that CNYPC or OMH “denied him benefits or services at
CNYPC ... because of his disability.” (Dkt. No. 100-24,
at 20–22). Defendants also argue that CNYPC and OMH
“had no knowledge that Plaintiff experienced hearing issues
that actually prohibited him from taking part in any benefit
or service at CNYPC” and therefore that Plaintiff cannot
establish that any accommodation was denied “because of
his disability.” (Id.). Plaintiff argues that he is entitled to
summary judgment on this claim because he requested
facially reasonable accommodations at CNYPC, which were
denied without a reasonable accommodation “screening” or
“individualized inquiry” into their reasonableness. (Dkt. No.
104-5, at 17–20).
In examining a claim premised on a theory of failure
to reasonably accommodate, the Court asks “whether a
plaintiff with disabilities ‘as a practical matter’ was denied
‘meaningful access’ to services, programs or activities to
which he or she was ‘legally entitled.’ ” Wright v. N.Y. State
Dep't of Corr., 831 F.3d 64, 72 (2d Cir. 2016) (quoting
Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2d Cir.
2003)). A reasonable accommodation “need not be ‘perfect’
or the one ‘most strongly preferred’ ” by the plaintiff, but
it must be “effective.” Id. (quoting Dean, 804 F.3d at 189).
“Determining the reasonableness of an accommodation is
a fact-specific question that often must be resolved by a
factfinder.” Id. at 72–73 (citation, brackets, and internal
quotation marks omitted).
1. Reasonableness of CNYPC's Accommodations
To accommodate Plaintiff's hearing impairment at CNYPC,
Plaintiff had the use of hearing aids, a telephone amplifier,
closed captioning, and preferred seating. (Dkt. No. 101-1,
at 114). Plaintiff does not dispute that he received these
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 103 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 10
accommodations, although he asserts that most of the “movies
and treatment videos” did not have closed captioning and that
preferred seating helps only in certain situations. (Dkt. No.
111, ¶¶ 38–39). Defendants argue that these accommodations
were reasonable because “it was determined that Plaintiff's
hearing impairment was not, in fact, prohibiting Plaintiff
from effectively and meaningfully participating” in CNYPC's
services. (Dkt. No. 112-6, at 15).
*13 The Court concludes that there is an issue of fact
regarding whether Plaintiff, as a practical matter, was denied
“meaningful access” to services, programs, and activities
to which he was legally entitled while at CNYPC. Wright,
831 F.3d at 72. According to Defendants, Plaintiff expressed
no concerns about his inability to hear other than one
issue with his hearing aid batteries which was promptly
resolved. See supra Section II.C. However, Plaintiff asserts
that there was not closed captioning “on the vast majority
of the movies and treatment videos.” (Dkt. No. 111, ¶ 38
(emphasis added)). And in letters written in November and
December 2017, Plaintiff complained that he could not hear
the “DVD instructional disc or many times the facilitator”
during “therapeutic treatment mall.” (Dkt. No. 100-4, at 3).
This issue of fact precludes a determination as a matter of
law regarding whether Plaintiff was denied meaningful access
to treatment programs and other services at CNYPC, and
Defendants’ motion for summary judgment cannot be granted
on this basis. Cf. Wright, 831 F.3d at 73 (“On this record, we
cannot determine that DOCCS's accommodations are plainly
reasonable and effectively provide Wright meaningful access
... because there is evidence that indicates that the mobility
assistance program ... discourages his participation in prison
activities.”). The possibility that a reasonable factfinder
could conclude that Plaintiff was not denied meaningful
access to CNYPC's services and programs also precludes
summary judgment in Plaintiff's favor on this claim. Lane v.
Carpinello, No. 07-cv-751, 2009 WL 3074344, at *17, 2009
U.S. Dist. LEXIS 88345 (N.D.N.Y. Aug. 31, 2009) (finding
questions of fact precluding summary judgment where the
plaintiff asserted he was “unable to participate in recreation”
and “read” without his requested accommodations and the
defendants contended that the plaintiff “demonstrated no
signs of difficulty” and “was able to fully participate in his
treatment groups”), report and recommendation adopted by
2009 WL 3074344, 2009 U.S. Dist. LEXIS 88341 (N.D.N.Y.
Sept. 24, 2009).
2. Reasonableness of Requested Accommodations
Even though the reasonableness of the accommodations
Plaintiff actually received at CNYPC cannot be determined
as a matter of law at this time, the Court may also
consider whether, under a burden-shifting framework,
Plaintiff's “proposed accommodation would have been
reasonable.” Wright, 831 F.3d at 76. Under this burden-
shifting framework, the plaintiff “bears the initial burden of
both production and persuasion as to the existence of an
accommodation that is facially reasonable.” Id. (quotation
marks and brackets omitted). The burden of persuasion
“then shifts to the defendant to ‘rebut the reasonableness
of the proposed accommodation,’ ” which is “in essence
equivalent” to showing that the proposed accommodation
would cause the defendant “to suffer an undue hardship.”
Id. (citation omitted). An “individualized inquiry must be
made to determine whether a specific modification for a
particular person's disability would be reasonable under the
circumstances.” Id. at 77 (quoting PGA Tour, Inc. v. Martin,
532 U.S. 661, 688, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001)).
Here, Plaintiff asserts that he requested a T-coil loop, pocket
talker, and more closed captioning while at CNYPC. 16 Were
a factfinder to credit this evidence, it seems likely that
Plaintiff can meet the “light burden of production” as to the
“facial reasonableness” of the proposed accommodations. Cf.
id. at 76. 17 Defendants offer no argument that any of these
requested accommodations would impose an undue hardship,
instead focusing their arguments on whether Plaintiff in fact
needed any additional accommodations. Thus, Defendants
are not entitled to summary judgment on the ground that
Plaintiff's proposed accommodations would not have been
reasonable.
In sum, in light of the numerous disputed issues of fact, no
party is entitled to summary judgment on Plaintiff's Title II
and Rehabilitation Act claims that he was not reasonably
accommodated at CNYPC.
F. Closure of the Wende “Resource Room”
*14 Defendants move for summary judgment on Plaintiff's
ADA and Rehabilitation Act claims against DOCCS for
the denial of access to the Wende Resource Room on June
25–29 and July 2–6, 2018. (Dkt. No. 100-24, at 17–20).
Plaintiff's opposition indicates that he “asked Defendants to
stipulate to a voluntary dismissal of the Resource Room
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 104 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 11
claims and await[ed] response.” (Dkt. No. 104-5, at 7 n.1).
In reply, Defendants state that Plaintiff failed to address
Defendants’ argument regarding this claim and “has offered
to discontinue it,” and that, as a result, “Defendants are
entitled to summary judgment on that claim.” (Dkt. No. 112-6,
at 2 n.1). The parties have not filed a stipulation of voluntary
discontinuance of this claim.
The Second Circuit has held that “a partial response [by
the non-movant] arguing that summary judgment should be
denied as to some claims while not mentioning others may
be deemed an abandonment of the unmentioned claims.”
Jackson v. Fed. Express, 766 F.3d 189, 195 (2d Cir. 2014);
see id. at 196 (drawing a distinction between fully unopposed
and partially opposed motions for summary judgment in
counseled cases). This is because “[g]enerally, but perhaps
not always, a partial response reflects a decision by a
party's attorney to pursue some claims or defenses and to
abandon others.” Id. at 196. Here, the Court need not infer
abandonment of Plaintiff's Resource Room claim because
Plaintiff abandoned the claim affirmatively and explicitly.
Plaintiff's opposition and cross-motion for partial summary
judgment noted that Plaintiff had sought Defendants’ consent
to a voluntary discontinuance of the claim but did not
otherwise address the claim in any way. (Dkt. No. 104-5,
at 7 n.1). Plaintiff's memorandum of law did not respond
to Defendants’ argument in support of summary judgment
on the claim. (See generally Dkt. No. 104-5). Further, rather
than substantively responding to the portion of Defendants’
statement of facts relevant to this claim, Plaintiff simply
asserted “No longer relevant to the litigation.” (See Dkt. No.
104-4, 16–17). Thus, because Plaintiff has abandoned the
claim relating to the closure of the Wende Resource Room
in June and July 2018, the claim is dismissed with prejudice.
See LaFever v. Clarke, 525 F. Supp. 3d 305, 333 (N.D.N.Y.
2021) (dismissing claims that were abandoned on summary
judgment); Leavitt v. Ethicon, Inc., 524 F. Supp. 3d 360, 367
(D. Vt. 2021) (granting motion for summary judgment in
light of the plaintiffs’ “unequivocal abandonment of certain
claims”).
G. September 2019 Program Call-Out
Defendants argue that they are entitled to summary judgment
on Plaintiff's claim relating to the alleged failure to provide
him with a pocket talker in September 2019 for use in a
programming meeting because, inter alia, Plaintiff failed to
exhaust his administrative remedies. (Dkt. No. 110-7, at 3–8).
Plaintiff did not respond to this argument.
The Prison Litigation Reform Act provides that “[n]o action
shall be brought with respect to prison conditions under [42
U.S.C. § 1983], or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). This exhaustion requirement “applies
to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether
they allege excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12
(2002); see also Carrasquillo v. City of New York, 324 F.
Supp. 2d 428, 442 (S.D.N.Y. 2004) (“The ADA falls within
the rubric of ‘any other federal law.’ ”). Proper exhaustion of
administrative remedies depends on the rules and regulations
of the prison in which the grievance is filed; that is, an inmate
of a DOCCS facility must satisfy the requirements set forth
by DOCCS regulations to properly exhaust administrative
remedies. See Garcia v. Heath, 74 F.4th 44, 46 (2d Cir. 2023);
see also Hayes v. Dahlke, 976 F.3d 259, 268 (2d Cir. 2020)
(“[I]t is the prison's requirements, and not the PLRA, that
define the boundaries of proper exhaustion.” (quoting Jones
v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798
(2007))).
*15 Defendants “bear the initial burden of establishing the
affirmative defense of non-exhaustion ‘by pointing to “legally
sufficient sources” such as statutes, regulations, or grievance
procedures’ which demonstrate that ‘a grievance process
exists and applies to the underlying dispute.’ ” Williams
v. Correction Officer Priatno, 829 F.3d 118, 126 n.6 (2d
Cir. 2016) (quoting Hubbs v. Suffolk Cnty. Sheriff's Dep't,
788 F.3d 54, 59 (2d Cir. 2015)). “If the defendants meet
this initial burden, administrative remedies may nonetheless
be deemed unavailable if the plaintiff can demonstrate that
other factors ... rendered a nominally available procedure
unavailable as a matter of fact.” Hubbs, 788 F.3d at 59 (citing
Hemphill v. New York, 380 F.3d 680, 688 (2d Cir. 2004),
abrogated on other grounds by Ross v. Blake, 578 U.S. 632,
639–42, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016)).
Under DOCCS regulations, an inmate must generally submit
a grievance within twenty-one days of an alleged occurrence,
see N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a)(1), but
may request an extension within forty-five days of the alleged
occurrence, see id. § 701.6(g)(1)(i)(a). An inmate's grievance
“should contain a concise, specific description of the problem
and the action requested.” Id. § 701.5(a)(2). Subsequent
procedural exhaustion of a filed grievance then involves
three steps: (1) the grievance is reviewed and resolved by
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 105 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 12
the Inmate Grievance Resolution Committee (“IGRC”), id.
§ 701.5(b); (2) the grievant appeals an adverse decision of
the IGRC to the superintendent of the facility at which the
grievance was filed, id. § 701.5(c); and (3) the grievant
appeals an adverse decision of the superintendent to the
Central Office Review Committee (“CORC”), id. § 701.5(d).
Upon the rendering of CORC's decision, or if CORC fails
to respond to a grievance within thirty days of its appeal
under the third step of the process, the grievant has exhausted
administrative remedies. See Hayes, 976 F.3d at 269–70.
Here, Defendants have established that the grievance
procedures contemplated by DOCCS regulations applied to
inmates at Wende and Sullivan Correctional Facility, to which
Plaintiff was transferred in January 2020. (Dkt. No. 110,
¶¶ 1, 11–12 (declaration of Incarcerated Grievance Program
Director Rachael Seguin asserting that Wende and Sullivan
both had “fully functioning incarcerated grievance processes
available”); see id. ¶¶ 8–9 (asserting that Plaintiff's claim
regarding the pocket talker “is the proper subject for a
grievance under DOCCS grievance procedures”)). Plaintiff
did not file a grievance about the pocket talker in September
2019, (Dkt. Nos. 110-1, 110-2, 110-4), and Plaintiff has
offered no evidence or advanced any argument that the
grievance process was unavailable to him.
Thus, because Plaintiff did not file any grievance
concerning the alleged failure to be provided with a
pocket talker in September 2019, he failed to exhaust his
available administrative remedies and Defendants’ motion for
summary judgment as to this claim is granted.
H. Eleventh Amendment Sovereign Immunity
Finally, Defendants argue that they are “immune to suit for
money damages in connection with Plaintiff's ADA Title
II claim[s].” (Dkt. No. 100-24, at 22–28); see Cuomo v.
N.Y. State Assembly Judiciary Comm., No. 22-mc-3027,
2023 WL 4686957, at *16–17, 2023 U.S. Dist. LEXIS
126153 (E.D.N.Y. July 21, 2023) (rejecting the argument that
state sovereign immunity “must be addressed as a threshold
matter” because it is not “fundamentally preliminary” or an
“absolute stricture” on courts). 18
*16 The Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.” U.S. Const.
amend. XI. Notwithstanding its plain language, the Supreme
Court has long held that the Eleventh Amendment bars all
federal court claims against states, including by the states’
own citizens, absent their consent to such suit or an express
statutory abrogation of immunity. See, e.g., Will v. Mich.
Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304,
105 L.Ed.2d 45 (1989); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 98–100, 104 S.Ct. 900, 79 L.Ed.2d
67 (1984). State immunity extends not only to the states, but
also to state agencies. See Puerto Rico Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142–47, 113
S.Ct. 684, 121 L.Ed.2d 605 (1993); McGinty v. New York,
251 F.3d 84, 95 (2d Cir. 2001) (“The Eleventh Amendment
extends immunity not only to a state, but also to entities
considered ‘arms of the state.’ ”). Here, it is undisputed that
each Defendant is considered a state agency protected by the
Eleventh Amendment. See Matagrano, 2020 WL 7338586, at
*15, 2020 U.S. Dist. LEXIS 234149.
In Garcia v. State University of N.Y. Health Sciences Center
of Brooklyn, 280 F.3d 98 (2d Cir. 2001), the Second Circuit
addressed the question of whether Congress had validly
abrogated state sovereign immunity from claims for monetary
damages under Title II of the ADA. The Court held that
“it is clear that the Congress fully intended to abrogate
state sovereign immunity” from such claims, but that this
purported abrogation was not valid because the enactment of
Title II exceeded Congress's authority under Section 5 of the
Fourteenth Amendment to enforce the protections afforded
by that amendment's Equal Protection Clause. Id. at 108–10.
However, the Court found that Title II could be rehabilitated
by requiring “plaintiffs bringing such suits to establish that
the Title II violation was motivated by discriminatory animus
or ill will based on the plaintiff's disability.” Id. at 111.
Recognizing that “direct proof of [discriminatory animus or
ill will] will often be lacking,” the Court further held that
to establish such animus, a plaintiff may rely on a burden-
shifting technique similar to that adopted in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973), or a motivating-factor analysis similar
to that set out in Price Waterhouse v. Hopkins, 490 U.S. 228,
252–58, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Id. at 112.
After Garcia, the Supreme Court decided Tennessee v. Lane,
541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004),
holding that Congress's abrogation of sovereign immunity
under Title II was valid in the specific context of cases
challenging barriers to courtroom accessibility. Id. at 531, 124
S.Ct. 1978. It reasoned that in enacting Title II, Congress
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 106 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 13
sought to enforce not only the Equal Protection Clause (as
recognized in Garcia) but also “a variety of other basic
constitutional guarantees, infringements of which are subject
to more searching judicial review,” including rights under
the Fourteenth Amendment's Due Process Clause. Id. at
522–23, 124 S.Ct. 1978. Put another way, the Supreme
Court found that Title II was “not wholly premised on
discrimination against the disabled that violates the Equal
Protection Clause,” arguably opening up the possibility of
other avenues for Title II damages claims to clear the
Eleventh Amendment hurdle besides the Equal Protection
“discriminatory animus” test recognized in Garcia. Bolmer v.
Oliveira, 594 F.3d 134, 147 (2d Cir. 2010).
Following Lane, the Supreme Court decided United States
v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d 650
(2006), in which it held that “insofar as Title II creates a
private cause of action for damages against the States for
conduct that actually violates the Fourteenth Amendment,
Title II validly abrogates state sovereign immunity.” Id.
at 159, 126 S.Ct. 877. However, because it was unclear
whether the petitioner's amended complaint might assert
Title II claims not premised on Fourteenth Amendment
violations, and because the justices disagreed as to the scope
of Congress's “prophylactic” authority to regulate conduct
not itself barred by the Fourteenth Amendment, the Court
remanded for the lower courts to determine, “on a claim-by-
claim basis, (1) which aspects of the State's alleged conduct
violated Title II; (2) to what extent such misconduct also
violated the Fourteenth Amendment; and (3) insofar as such
misconduct violated Title II but did not violate the Fourteenth
Amendment, whether Congress's purported abrogation of
sovereign immunity as to that class of conduct is nevertheless
valid.” Id. at 158–59, 126 S.Ct. 877. “Thus, Georgia explicitly
left open the question of whether Congress may validly
abrogate sovereign immunity with respect to a particular class
of misconduct that violates Title II but does not violate the
Fourteenth Amendment.” Dean, 804 F.3d at 194.
*17 The Second Circuit has not fully resolved the question
of whether, or to what extent, Garcia remains valid in
light of Georgia. In Bolmer, the Second Circuit held that
“Garcia only applies to Title II claims based on Equal
Protection,” that “Garcia is not applicable when Congress's
abrogation is supported by its enforcement of the substantive
due process right not to be involuntarily committed absent a
danger to self or others,” and that “under Georgia and Lane,
Congress validly abrogated states’ Eleventh Amendment
immunity where the same conduct by the defendant violated
both Title II and substantive due process.” 594 F.3d at
145–49. However, Bolmer did not address the standard for
evaluating whether the Eleventh Amendment bars Title II
damages claims based on conduct that does not independently
implicate constitutional rights. Later, in Dean, the Second
Circuit recognized that “[c]ontinued uncertainty as to the
vitality of Garcia has led to a divergence in the approaches
adopted by district courts in this Circuit in their assessment
of Congress's abrogation of sovereign immunity under Title
II,” but expressed “no position” as to the issue. 804 F.3d at
194–95.
In light of this “continued uncertainty,” district courts have
taken varying approaches to the continuing validity of Garcia.
When determining whether Congress has validly abrogated
states’ sovereign immunity from Title II claims that do
not independently implicate a constitutional violation, some
courts have continued to apply Garcia’s “discriminatory
animus or ill will” requirement. See, e.g., Bobbit v. Marzan,
No. 16-cv-2042, 2020 WL 5633000, at *13, 2020 U.S.
Dist. LEXIS 172422 (S.D.N.Y. Sept. 21, 2020) (stating that,
when applying the third clause of the Georgia test, “[a]t a
minimum, covered claims include those where the plaintiff
makes ‘a showing of discriminatory animus or ill will,’
because in those cases discrimination in contravention of
the ADA also threatens the rights protected by the Equal
Protection Clause”); Monroe v. N.Y. State Dep't of Corr. &
Cmty. Supervision, No. 16-cv-2818, 2019 WL 4688665, at
*10, 2019 U.S. Dist. LEXIS 164527 (S.D.N.Y. Sept. 25,
2019) (“Many courts in the Second Circuit have used the
discriminatory animus or ill will test laid out in Garcia
to inform its analysis of the third clause of the Georgia
test ....”). Others have applied the three-part test articulated
in City of Boerne v. Flores, 521 U.S. 507, 520, 117 S.Ct.
2157, 138 L.Ed.2d 624 (1997), to determine whether, for the
particular Title II violation alleged, there is a “congruence
and proportionality between the injury to be prevented or
remedied and the means adopted to that end.” See, e.g., Lenti
v. Connecticut, No. 20-cv-127, 2020 WL 4275600, at *7–10,
2020 U.S. Dist. LEXIS 131189 (D. Conn. July 24, 2020);
Goonewardena v. New York, 475 F. Supp. 2d 310, 322–24
(S.D.N.Y. 2007).
Here, Defendants argue they are immune from Plaintiff's
ADA claims for money damages under either Garcia’s
“discriminatory animus or ill will” test or the City of Boerne
“congruence and proportionality” test. (Dkt. No. 100-24, at
25–28). Plaintiff responds that, “[i]f Garcia is controlling,
Plaintiff is entitled to damages for the failure to reasonably
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 107 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 14
accommodate him with his pocket talker in 2019” because
internal emails indicate that two employees “enjoyed making
fun of” Plaintiff. (Dkt. No. 104-5, at 24–25). 19 Given the
uncertainty described above, the Court will apply both tests.
The Court first concludes that Congress's purported
abrogation of sovereign immunity as to Plaintiff's claims
relating to the ASL ban in the Wende mess hall and the
failure to reasonably accommodate Plaintiff at CNYPC is
not valid under the test set forth in Garcia. Plaintiff has
pointed to no evidence which would tend to establish that any
of the conduct underlying those claims “was motivated by
discriminatory animus or ill will based on [his] disability.”
Garcia, 280 F.3d at 111. Plaintiff himself suggests that
the prohibition on using ASL in the mess hall was due
not to any animus or ill will but because the guards
could not distinguish ASL from gang signs and would
get distracted or nervous. (Dkt. No. 100-14, at 97–98).
And there is evidence that the staff at CNYPC provided
Plaintiff with certain accommodations and responded to his
hearing aid battery issues and later to his written complaints.
See supra Section II.C. Thus, abrogation is not proper
under Garcia. Cf. Kearney v. N.Y.S. D.O.C.S., No. 11-
cv-1281, 2013 WL 5437372, at *10, 2013 U.S. Dist. LEXIS
140932 (N.D.N.Y. July 31, 2013) (concluding “the numerous
accommodations granted to Plaintiff in lieu of the requested
transfer weigh against a finding of discriminatory animus”),
report-recommendation adopted by 2013 WL 5437372, 2013
U.S. Dist. LEXIS 139060 (N.D.N.Y. Sept. 27, 2013).
*18 Under the Georgia framework, the Court must consider
whether Congress's purported abrogation of sovereign
immunity regarding the alleged conduct which may violate
Title II but does not violate the Fourteenth Amendment is
nevertheless valid. Georgia, 546 U.S. at 159, 126 S.Ct. 877.
To do so, the Court applies the three-part test from City of
Boerne. The first step is “to identify with some precision
the scope of the constitutional right at issue.” Bd. of Trs.
of Univ. of Ala. v. Garrett, 531 U.S. 356, 365, 121 S.Ct.
955, 148 L.Ed.2d 866 (2001). The second consideration
is “whether Congress identified a history and pattern of
unconstitutional ... discrimination by the States against the
disabled.” Id. at 368, 121 S.Ct. 955. At the final step, the
Court considers whether the rights and remedies created by
the ADA against the States are “congruent and proportional
to the targeted violation.” Id. at 372–74, 121 S.Ct. 955.
The parties have not expressly addressed the first step but
appear to suggest that the constitutional right at issue is the
right to equal protection of the laws under the Fourteenth
Amendment. See Chase v. Baskerville, 508 F. Supp. 2d 492,
499–500 (E.D. Va. 2007) (concluding that, in the prison
context, Title II “clearly implicates ... the equal protection
rights of the Fourteenth Amendment”). With respect to the
second step, “several courts have interpreted Tennessee v.
Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004),
as ‘conclusively establishing that Title II as a whole survives
the historical inquiry under the second step of the City of
Boerne test.’ ” Lenti, 2020 WL 4275600, at *10, 2020 U.S.
Dist. LEXIS 131189 (collecting cases). Nevertheless, the
Court agrees with those courts who have found that state
prisoners’ claims fail the third step of the City of Boerne
test because, in the prison context, “Title II is so out of
proportion to a supposed remedial or preventive object that
it cannot be understood as responsive to, or designed to
prevent, unconstitutional behavior.” Id., 2020 WL 4275600,
at *10, 2020 U.S. Dist. LEXIS 131189 (noting that courts
have emphasized Title II's “broad scope” and the need for
federal courts to be “cautious before interfering with the
administration of a State's prison system”) (citations omitted).
Here, because there is no indication that Defendants acted
irrationally or arbitrarily, or were motivated by discriminatory
animus or ill will, the conduct alleged by Plaintiff is “far afield
from the essence” of the Equal Protection Clause. Id.; see also
Chase, 508 F. Supp. 2d at 504 (“In short, Title II imposes an
affirmative accommodation obligation in the administration
of state prisons that far exceeds what the Equal Protection
Clause requires.”).
Accordingly, the Court concludes that Plaintiff's ADA claims
for money damages are barred by the Eleventh Amendment.
V. CONCLUSION
For these reasons, it is hereby
ORDERED that Defendants New York State Department of
Corrections and Community Supervision, Central New York
Psychiatric Center, and New York State Office of Mental
Health's motion for summary judgment (Dkt. No. 100) is
GRANTED in part; and it is further
ORDERED that Plaintiff's claims under Title II of the ADA
and the Rehabilitation Act based on (1) the closure of the
Wende Resource Room in June and July 2018 and (2) the
failure to accommodate with a pocket talker in September
2019 are DISMISSED with prejudice; and it is further
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 108 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 15
ORDERED that Plaintiff's claims under Title II of the ADA
based on (1) the prohibition on the use of ASL in the Wende
mess hall and (2) the failure to accommodate at CNYPC are
DISMISSED with prejudice; and it is further
ORDERED that Defendants’ motion for summary judgment
(Dkt. No. 100) is otherwise DENIED; and it is further
ORDERED that Plaintiff Matthew John Matagrano's cross-
motion for partial summary judgment (Dkt. No. 104) is
DENIED.
*19 IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 5932943
Footnotes
1 The facts are drawn from Defendants’ Rule 56.1 statement, Plaintiff's response to Defendants’ Rule 56.1
statement and statement of additional undisputed facts, Defendants’ supplemental Rule 56.1 statement, and
Defendants’ response to Plaintiff's statement of additional undisputed facts, (Dkt. Nos. 100-23, 104-4, 110-6,
112-5), to the extent the facts are well-supported by pinpoint citations to the record, as well as the exhibits
attached thereto and cited therein. In considering the parties’ cross-motions for summary judgment, the Court
“in each case constru[es] the evidence in the light most favorable to the non-moving party.” Krauss v. Oxford
Health Plans, Inc., 517 F.3d 614, 621–22 (2d Cir. 2008).
2 In July 2019, Plaintiff's hearing impairment was reassessed at “HL10,” meaning deaf. (Dkt. Nos. 105-6,
105-19).
3 Plaintiff moves to strike Boydston's declaration because Defendants did not disclose Boydston's name or
identity in their Rule 26(a) disclosures. (Dkt. No. 104-4, ¶ 19). Rule 37 provides that a party who “fails to
provide information or identify a witness as required by Rule 26(a) or (e)” is “not allowed to use that information
or witness to supply evidence on a motion ..., unless the failure was substantially justified or is harmless.” Fed.
R. Civ. P. 37(c)(1). In determining whether to exclude evidence under Rule 37(c)(1), courts must consider:
(1) the party's explanation for the failure to comply with its disclosure obligations; (2) the importance of the
evidence sought to be precluded; (3) the prejudice suffered by the opposing party as a result of having to
prepare to meet the new information; and (4) the possibility of a continuance. Patterson v. Balsamico, 440
F.3d 104, 117 (2d Cir. 2006). Defendants have offered no explanation for their failure to name Boydston in
their Rule 26 disclosure but assert that the purpose of Boydston's declaration is to “get the relevant documents
before the Court and explain their relevance in the inpatient setting.” (Dkt. No. 112, ¶ 4). Plaintiff has not
indicated that any of the documents attached to the declaration was not produced to him during discovery.
Under these circumstances, the Court will consider Boydston's declaration and the attached exhibits, as there
is no indication that Plaintiff has suffered any prejudice as a result of Defendants’ failure.
4 Defendants deny that Plaintiff indicated he needed a T-coil loop or pocket talker during his initial assessment
with medical, because such a request would have been noted in his treatment record but was not. (Dkt. No.
112-3, ¶ 8 (declaration of Timothy Lamitie, CNYPC's Director of Facility Administrative Services, asserting
that any requests for a T-coil loop or pocket talker or complaints about a lack of closed captioning “would
have been noted in his treatment record”)).
5 In a progress note dated January 4, 2018, a nurse recorded that Plaintiff reported that he broke the back part
of his hearing aid which holds the batteries. (Dkt. No. 101-1, at 393). The nurse explained to Plaintiff that
there were “no instances of [Plaintiff] having difficulty hearing with the one hearing aide,” or with no hearing
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 109 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 16
aids in the morning. (Id.). In response, Plaintiff laughed and stated “Yeah, don't worry about it” and that he
could wait until he returned to Wende to fix it. (Id.).
6 The therapist also reported that on one occasion Plaintiff “was sitting in the backroom with his eyes closed,” a
staff member “called his name with normal tone and volume,” and Plaintiff “immediately looked up and came
over.” (Dkt. No. 100-11, at 9; see also Dkt. No. 101-1, at 383, 385).
7 See, e.g., Matagrano v. N.Y. State Dep't of Corr. & Cmty. Supervision, No. 19-cv-763, 2020 WL 7338586,
2020 U.S. Dist. LEXIS 234149 (N.D.N.Y. Dec. 14, 2020); (Dkt. Nos. 43, 99 (stipulations of voluntary
dismissal)).
8 Defendants’ motion for summary judgment did not address the alleged failure to reasonably accommodate
Plaintiff with a pocket talker in September 2019. (See generally Dkt. No. 100-24; see also Dkt. No.
100-13, ¶¶ 3–7 (defense counsel declaration setting forth her efforts to confirm the remaining claims with
Plaintiff's counsel prior to moving for summary judgment)). Defendants requested and received permission
to supplement their motion for summary judgment to address the pocket talker claim. (Dkt. Nos. 106, 109;
see Dkt. No. 110 (Defendants’ supplement in support of motion for summary judgment)).
9 It is undisputed that Plaintiff does not seek any injunctive relief. (Dkt. No. 100-23, ¶ 3; Dkt. No. 104-4, ¶ 3).
10 Plaintiff does not appear to dispute that emotional distress damages are unrecoverable under the
Rehabilitation Act and Title II of the ADA. Although Plaintiff notes that Cummings “did not hold that all
compensatory damages are unavailable under the Rehabilitation Act,” (Dkt. No. 104-5, at 21 (emphasis
added)), he does not identify any compensatory damages he seeks to recover which are not for emotional
distress.
11 Title IX “was modeled after Title VI,” and the two statutes operate in the same manner. Gebser, 524 U.S. at
286, 118 S.Ct. 1989. As do Title II and the Rehabilitation Act, Title IX “incorporates the remedies established
by Title VI.” Jones, 20 F.4th at 1120.
12 Defendants cite no authority for the proposition that an “official capacity defendant” must be named.
13 Because a plaintiff need not show discriminatory intent to prevail on a disparate impact claim, Defendants’
argument that Plaintiff's claim fails because there is no evidence that he was directed to stop using ASL
“because of his disability” is misplaced. (See Dkt. No. 100-24, at 16). Defendants also argue that Plaintiff
“cannot establish that any direction not to use ASL in the mess hall [prevented] Plaintiff from participating in
DOCCS benefits and services.” (Dkt. No. 112-6, at 8). But Title II of the ADA and the Rehabilitation Act also
prohibit a qualified individual from being “subjected to discrimination.” 42 U.S.C. § 12132; 29 U.S.C. § 794(a).
14 Plaintiff has not asserted or argued that any such ban was pursuant to a formal or written DOCCS policy. (See
Dkt. No. 111, ¶ 18 (asserting that there has been an “unofficial policy against using ASL in the mess hall”)).
15 As discussed above, the Court does not find Defendants’ argument about vicarious liability determinative. And
the parties have not sufficiently addressed the deliberate indifference standard set forth in Gebser, Loeffler,
and Biondo to permit meaningful analysis.
16 Plaintiff also asserts that he requested access to a TTY phone at CNYPC, but the parties stipulated to the
voluntary discontinuance of all claims “derived from Plaintiff's access to a TTY machine” at both Wende and
CNYPC. (Dkt. No. 99).
17 The Court rejects Plaintiff's suggestion that the accommodations he received at DOCCS facilities are
necessarily reasonable under the circumstances at CNYPC without any further inquiry. Further, although
Plaintiff argues that Defendants did not strictly follow CNYPC's policies and procedures regarding reasonable
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 110 of 151

Matagrano v. New York State Department of Corrections..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 17
accommodations, he provides no authority to support the proposition that the failure to follow the letter of a
policy necessarily amounts to a violation of Title II of the ADA or the Rehabilitation Act.
18 Defendants do not raise an Eleventh Amendment defense with respect to Plaintiff's Rehabilitation Act claims
and, as the Court noted in its prior decision, it is “doubtful” that Plaintiff's Rehabilitation Act claims would
be barred by the Eleventh Amendment. Matagrano, 2020 WL 7338586, at *11 n.18, 2020 U.S. Dist. LEXIS
234149. Courts in this Circuit have concluded that “New York's continued acceptance of federal funds” under
the Rehabilitation Act “constitutes a knowing waiver of sovereign immunity.” Marino v. City Univ. of N.Y., 18
F. Supp. 3d 320, 331–32 (E.D.N.Y. 2014) (collecting cases).
19 Plaintiff makes no argument that any of the alleged Title II violations also independently violates the
Constitution. Because the Court grants summary judgment to Defendants on Plaintiff's claim relating to
the failure to accommodate with a pocket talker in September 2019 for failure to exhaust his available
administrative remedies, Plaintiff's argument about the unprofessional internal emails is not relevant to the
sovereign immunity analysis.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 111 of 151

Musaid v. Donner, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 3083325
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Mohamed MUSAID, Plaintiff,
v.
DONNER, et al., Defendants.
9:23-CV-0257 (BKS/CFH)
|
Signed June 21, 2024
Attorneys and Law Firms
MOHAMED MUSAID, Plaintiff, pro se, 16-A-1673, Attica
Correctional Facility, Box 149, Attica, NY 14011.
DECISION AND ORDER
BRENDA K. SANNES, Chief United States District Judge
I. INTRODUCTION
*1 On February 27, 2023, pro se plaintiff Mohamed
Musaid (“plaintiff”) commenced this action by submitting a
complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”),
with an application to proceed in forma pauperis (“IFP”).
Dkt. No. 1 (“Compl.”); Dkt. No. 5 (“IFP Application”). The
complaint contained allegations of wrongdoing that occurred,
if at all, while plaintiff was confined at Clinton Correctional
Facility (“Clinton C.F.”). See generally Compl.
By Decision and Order filed on March 22, 2023 (the “March
Order”), this Court granted plaintiff's IFP Application and
reviewed the sufficiency of the complaint in accordance with
28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Dkt.
No. 12. The Court found that plaintiff's Eighth Amendment
excessive force claims against defendant Officer Donner
(“Donner”) survived review and required a response. See id.
The Court dismissed plaintiff's § 1983 claims for monetary
damages against Clinton C.F. with prejudice and all remaining
claims, without prejudice. See id.
On March 24, 2023, a summons was issued to Donner.
Dkt. No. 9. On April 12, 2023, the summons was returned
“unexecuted” with a letter from the New York State
Department of Corrections and Community Supervision
(“DOCCS”) indicating that “[b]ased upon information
provided, we are unable to identify Correction Officer Donner
listed in the lawsuit. Dkt. No. 12. On September 14, 2023, the
court wrote to plaintiff, requesting that he send any additional
information he had regarding Donner. Dkt. No. 15. Plaintiff
failed to respond to the Court's correspondence.
On January 26, 2024, the Court issued an Order noting, “[i]n
order for this case to proceed against defendant Donner, he
must be served” and, pursuant to Valentin v. Dinkins, 121 F.3d
72, 75 (2d. Cir. 1997) (per curiam), the Court directed the New
York State Attorney General's Office “to attempt to ascertain
the identity and/or location of defendant Donner, as well as
the address at which he may be served with process.” Dkt.
No. 16. The New York State Attorney General's Office was
directed to produce the information within thirty (30) days of
the filing date of the Order. Id.
On February 18, 2024, the Attorney General's Office
responded and advised that Officer Robert Donah (“Donah”)
was involved in a use of force incident with plaintiff. Dkt. No.
18. Donah authorized DOCCS to accept service on his behalf.
Id.
On March 28, 2024, the Court issued an Order directing
plaintiff to amend his complaint with the correct identity of
the defendant. Dkt. No. 19.
Plaintiff's amended complaint is now before the Court for
review. Dkt. No. 21 (“Am. Compl.”).
II. SUFFICIENCY OF AMENDED COMPLAINT
A. Legal Standard
The legal standard governing the dismissal of a pleading for
failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)
and 28 U.S.C. § 1915A was discussed at length in the March
Order and will not be restated in this Decision and Order. See
Dkt. No. 12 at 2-4.
B. Summary of Amended Complaint
With the amended complaint, plaintiff substitutes defendant
Donah for Donner. 1 See generally Am. Compl. Plaintiff also
includes a new defendant, “Medical Doctor.” 2 See id.
*2 On March 24, 2021, Donah arrived at plaintiff's cell to
escort him for his “monthly medical shot.” Am. Compl. at
2. Plaintiff refused the shot due to the “drastic physical side
effects” he experienced including “the violent shaking of [his]
limbs.” Id. Donah directed plaintiff to put his hands behind his
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 112 of 151

Musaid v. Donner, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
back. Id. Plaintiff could not comply because he could not stop
his hands from shaking. Id. In an effort to “regain control,” he
placed his hands near the window pane.” Am. Compl. at 3.
Donah grabbed plaintiff from behind, twisted his arm, and
grabbed his head. Am. Compl. at 3. Donah attempted to “slam
[plaintiff's] head into a nearby table.” Id. Plaintiff fell to the
ground and Donah proceeded to “assault” him. Id.
Plaintiff's “ribs felt broken” and it was hard for him to breath.
Am. Compl. at 4. Plaintiff was handcuffed and escorted to the
clinic. Id. Plaintiff asked Donah to remove his mask because
he was having difficulty breathing, but Donah refused and
pushed plaintiff's head into a wall. Id. Donah forced plaintiff
to the ground, got on top of him, “sexually assaulted” him,
and told plaintiff to “imagine his [expletive] inside of [him].”
Id. Donah “taunted” plaintiff with derogatory and explicit
language. Am. Compl. at 4-5.
When he arrived at the infirmary, Donah told the Medical
Doctor that plaintiff was “out of control” and the Medical
Doctor “went up on the medication, at that time” without an
individualized assessment. Am. Compl. at 7, 9.
On March 25, 2021, plaintiff was “assaulted” by “officers”
in the presence of “doctors” and “the sergeant.” Am. Compl.
at 5.
Construing the amended complaint liberally 3 , plaintiff
alleges the following: (1) Eighth Amendment excessive
force claims against Donah; (2) Fourteenth Amendment
substantive due process claims against Donah and Medical
Doctor; and (3) Eighth Amendment deliberate medical
indifference claims against Medical Doctor. See generally
Am. Compl. Plaintiff seeks monetary damages. Id. at 13.
C. Analysis
1. Eighth Amendment – Excessive Force
The Court set forth the law related to Eighth Amendment
excessive force claims in the March Order, and will not restate
it herein. See Dkt. No. 12 at 9-10.
Plaintiff's Eighth Amendment excessive force claims related
to the March 24, 2021 use of force incidents against Donah
are repeated and realleged in the amended complaint. For the
reasons set forth in the March Order, defendant is directed to
respond to this claim.
A different conclusion is reached however, with respect to
plaintiff's excessive force claims related to the use of force
on March 25, 2021. See Am. Compl. at 5. The amended
complaint lacks facts suggesting that Donah was personally
involved in this use of force. Plaintiff claims, “I was once
again assaulted and taunted by officers.” Id. Plaintiff claims
he was not given “protection by either of them or the staff” and
that “it was in front of the sergeant of that area and doctors.”
Id. Because plaintiff has not identified the officers, sergeant,
or doctors who were involved with or present during the
incident and, has not provided any facts related to where and
when the incident occurred, plaintiff's Eighth Amendment
claims related to this incident are dismissed.
2. Fourteenth Amendment – Substantive Due Process
*3 “Substantive due process protects individuals against
government action that is arbitrary, conscience-shocking,
or oppressive in a constitutional sense ... but not against
government action that is ‘incorrect or ill-advised.’ ”
Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994)
(internal quotation marks and citations omitted). “To establish
a violation of substantive due process rights, a plaintiff
must demonstrate that the state action was ‘so egregious,
so outrageous, that it may fairly be said to shock the
contemporary conscience.’ ” Okin v. Village of Cornwall–
On–Hudson Police Dep't, 577 F.3d 415, 431 (2d Cir. 2009)
(quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.
8 (1998)).
“Very few conditions of prison life are ‘shocking’ enough
to violate a prisoner's right to substantive due process. In
Sandin v. Conner, the Supreme Court provided only two
examples: the transfer to a mental hospital and the involuntary
administration of psychotropic drugs.” Samms v. Fischer,
No. 10–CV–349 (GTS/GHL), 2011 WL 3876528, at *12
(N.D.N.Y. Mar. 25, 2011) (citations omitted). However,
“[w]here a particular constitutional amendment ‘provides an
explicit textual source of constitutional protection’ against a
particular sort of government behavior, ‘that Amendment, not
the more generalized notion of substantive due process, must
be the guide for analyzing’ such a claim.” Albright v. Oliver,
510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490
U.S. 386, 395 (1989)); see Bryant v. City of New York, 404
F.3d 128, 135–36 (2d Cir. 2005).
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 113 of 151

Musaid v. Donner, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
Plaintiff claims that Donah subjected him to excessive force
in violation of his substantive due process rights. Am. Compl.
at 10. Plaintiff's substantive due process claim is based upon
events surrounding the excessive force incident. Since the
Eighth Amendment provides an explicit textual source for
the specific constitutional protection in question, plaintiff's
substantive due process claim is improper, and will be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) for failure to state a claim. See Rother
v. NYS Dep't of Corrs. and Cmty. Supervision, 970 F.Supp.
2d 78, 100 (N.D.N.Y. 2013) (“[S]ubstantive-due-process
claims must be dismissed where they are ‘merely duplicative
of claims explicitly protected under other constitutional
sources.’ ”) (quoting Roman v. Velleca, 2012 WL 4445475,
*10 (D. Conn. Sept. 25, 2012)).
A different conclusion is reached with respect to plaintiff's
Fourteenth Amendment claim against the Medical Doctor.
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).
At this juncture, the Court finds that the amended
complaint contains allegations sufficient to state a Fourteenth
Amendment claim against the Medical Doctor. 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. 4
3. Eighth Amendment – Deliberate Medical Indifference
*4 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). The Second Circuit, in
addressing the needs protected by the Eighth Amendment,
has stated that sentenced prisoners are entitled to “adequate
food, clothing, shelter, sanitation, medical care and personal
safety.” Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir. 1978),
rev'd on other grounds sub nom. Bell v. Wolfish, 441 U.S. 520
(1979); Lareau v. Manson, 651 F.2d 96, 106 (2d Cir. 1981).
“In order to establish an Eighth Amendment claim arising out
of inadequate medical care, a prisoner must prove ‘deliberate
indifference to [his] serious medical needs.’ ” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle,
429 U.S. at 104). “First, the alleged deprivation must be, in
objective terms, sufficiently serious.” Id. (internal quotation
marks and citations omitted). “Determining whether a
deprivation is an objectively serious deprivation entails two
inquiries[:] [1] ... whether the prisoner was actually deprived
of adequate medical care[; and 2] ... whether the inadequacy
in medical care is sufficiently serious.” Salahuddin v. Goord,
467 F.3d 263, 279-80 (2d Cir. 2006) (citations omitted).
The first inquiry under the objective component requires
examining “whether the prisoner was actually deprived of
adequate medical care.” Salahuddin, 467 F.3d at 279. Prison
officials who act “reasonably” in response to an inmate's
health risk will not be found liable because the official's duty
is only to provide “reasonable care.” Id. at 279-80 (citing
Farmer v. Brennan, 511 U.S. 825, 844-47 (1970)).
The second inquiry under the objective component requires
examining whether the purported inadequacy in the medical
care is “sufficiently serious.” Salahuddin, 467 F.3d at 280.
If the “unreasonable care” consists of a failure to provide
any treatment, then the court must examine whether the
inmate's condition itself is “sufficiently serious.” Id. (citing
Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003)).
A condition is “sufficiently serious” in objective terms if it
presents “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).
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 114 of 151

Musaid v. Donner, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
Plaintiff alleges that the Medical Doctor was deliberately
indifferent because he administered 100 mg of a “medical
shot” when plaintiff was prescribed 50 mg. Am. Compl.
at 5. Plaintiff does not allege that defendant disregarded
his medical needs or acted with culpable intent. Essentially,
plaintiff's allegations amount to a disagreement with
defendant's course of treatment, which is insufficient to
establish an Eighth Amendment violation. See Brown v.
Ionescu, No. 02 CIV. 1218, 2004 WL 2101962, at *4
(S.D.N.Y. Sept. 21, 2004) (finding allegations that the
defendant inserted a stent to treat kidney stones without the
plaintiff's consent amounted to a disagreement that could
support a Fourteenth Amendment claim, but not an Eighth
Amendment claim); see also Duva v. Riverhead Corr. Fac.
Med. Dep't, 2019 WL 5537250, at *2 (E.D.N.Y. Oct. 25,
2019) (“A medication error alone, as to either the type or dose
of medication, is not deliberate indifference. It is, at most,
medical malpractice, which is not actionable under § 1983.”)
(citation omitted).
*5 Accordingly, plaintiff's Eighth Amendment deliberate
medical indifference claim is dismissed 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.
III. CONCLUSION
WHEREFORE, it is hereby
ORDERED that the amended complaint (Dkt. No. 21) is
ACCEPTED for filing and is the operative pleading in this
action; and it is further
ORDERED that the Clerk of the Court shall (i) revise the
docket to reflect that Donah is substituted as a defendant for
Donner in this action; and (ii) revise the docket to reflect that
Medical Doctor is a defendant in this action; and it is further;
ORDERED that the following claims survive review and
require a response: (1) Eighth Amendment excessive force
claims related to the events on March 21, 2021 against Donah;
and (2) Fourteenth Amendment due process claim against
Medical Doctor; and it is further
ORDERED that the remaining claims in the amended
complaint are DISMISSED without leave to replead; and it
is further
ORDERED that the Clerk shall issue a summons and forward
it, along with copies of the amended complaint, to the United
States Marshal for service upon the defendant. The Clerk shall
forward a copy of the summons and amended complaint to the
Office of the Attorney General, together with a copy of this
Decision and Order, by electronic mail only; and it is further
ORDERED that a response to the amended complaint be
filed by the defendant, or counsel, as provided for in the
Federal Rules of Civil Procedure;
ORDERED that plaintiff shall take reasonable steps through
discovery to ascertain the identity of defendant Medical
Doctor. Plaintiff's failure to timely serve this defendant will
result in dismissal of the claims asserted against him/her and
termination of defendant from the action; 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 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; their failure to do
so will result in the dismissal of his action; and it is further
ORDERED that the Clerk of the Court shall serve a copy of
this Decision and Order on plaintiff in accordance with the
Local Rules of Practice.
All Citations
Not Reported in Fed. Supp., 2024 WL 3083325
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 115 of 151

Musaid v. Donner, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
Footnotes
1 The Clerk of the Court is directed to substitute Donah for Donner on the Docket Report.
2 The Clerk of the Court is direct to amend the Docket Report to include this defendant.
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. Girdic, 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 If plaintiff wishes to pursue his claims against defendant Medical Doctor, he must take reasonable steps to
ascertain through discovery the identity of the individual. Upon learning the identity of the unnamed defendant,
plaintiff must amend the operative complaint to properly name the individual as a party. If plaintiff fails to
ascertain the identity of the Medical Doctor so as to permit timely service of process, all claims against the
individual will be dismissed.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 116 of 151

Pyle v. Robin Sims, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 663518
Only the Westlaw citation is currently available.
United States District Court, W.D.
Arkansas, Fayetteville Division.
David Martin PYLE, Plaintiff
v.
Head Nurse ROBIN SIMS, Nurse Judy
Madewell, Andrew Piazza (nurse), and
Nurse Phebe Grothaus, Defendants
Civil No. 5:15-CV-05245
|
Signed 01/30/2017
Attorneys and Law Firms
David Martin Pyle, Springdale, AR, pro se.
James Levi Cook, Dunn, Nutter & Morgan, L.L.P., Texarkana,
TX, for Defendants.
REPORT AND RECOMMENDATION
OF THE MAGISTRATE JUDGE
HON. ERIN L. SETSER, UNITED STATES MAGISTRATE
JUDGE
*1 This is a civil rights action filed by the Plaintiff pursuant
to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma
pauperis.
At all times relevant to the complaint, Plaintiff was
incarcerated in the Washington County Detention Center
(WCDC). Plaintiff is currently not incarcerated.
Plaintiff contends his constitutional rights were violated
when an error concerning his prescribed dosage of the anti-
psychotic drug Quetiapine was made by unknown medical
personnel on his Medical Administration Record (MAR).
Specifically, the dosage was changed from the maximum
safe dose of 800 mg per day to 1600 mg per day. (Doc. 1,
pp. 5-8). Plaintiff also contends actions taken by Southern
Health Partners (SHP) medical staff in response to that
error also violated his constitutional rights. (Doc. 1, pp.
6-8). Defendants filed a partial motion to dismiss Plaintiff's
official capacity claims. (Doc. 9). This motion was granted on
March 14, 2016. (Doc. 13). Defendants have filed a motion
for summary judgment regarding the remaining individual
capacity claims. (Doc. 19). Plaintiff has filed a written
response. 1 (Doc. 22). The Court requested and received two
summary judgment supplements from Defendants. (Docs.
27, 30) Plaintiff responded to the first supplement. (Doc.
28). Plaintiff did not respond to the second supplement.
Defendants filed an additional affidavit from a non-party on
January 25, 2016. (Doc. 32). The motion is ready for decision.
1. Background
In his complaint, Plaintiff alleges that on or about August
1, 2015, SHP medical staff gave him the wrong dosage of
Seroquel (Quetiapine). Specifically, he alleges the prescribed
dose was 400 mg twice daily, and he was given 800 mg
twice daily. (Doc. 1, p. 5). He alleges this occurred for
approximately thirty days. He further alleges that when the
mistake was discovered, SHP medical staff abruptly cut his
dosage back to the correct dosage without giving his body and
mind time to adjust. (Doc. 1, p. 5). Plaintiff alleges this made
him immune to the prescribed amount. (Doc. 1, p. 6).
Plaintiff alleges he saw Nurse Madewell about his conditions
after the medication dosage was reduced back to a total of 800
mg per day. He alleges that she ignored his requests to speak
to a physician, and instead told him to “work on his coping
skills.” (Doc. 1, p. 7). He alleges Nurse Robin Sims 2 is the
head nurse and was aware of the staff mistake. He further
alleges she is “responsible for the actions of the staff working
under her,” but permitted them to ignore his requests to fix this
issue. 3 He alleges she is involved in staff attempts to cover
up the mistake concerning his medication. (Doc. 1, p. 8).
*2 Plaintiff seeks compensatory and punitive damages,
mental compensation, and “to make sure this misconduct
doesn't happen in the future.” (Doc. 1, p. 12).
Defendants filed their summary judgment motion on August
8, 2016. (Doc. 19).
In his response to the summary judgment motion, Plaintiff
stated he “never claimed any physical issues” due to the
Quetiapine overdose. (Doc. 22, p. 1). Rather, he states the high
dosage and abrupt cessation down to the correct dosage left
him with mental issues as a schizophrenia patient. (Doc. 22,
p. 1). In the first page of the response, he states he received the
overdose for thirty days. (Doc. 22, p. 1). Later in the response
he states that Defendants' Exhibit 1-d (September MAR)
indicates he received the overdose for twenty seven days, as
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 117 of 151

Pyle v. Robin Sims, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
opposed to the five days claimed by Defendants. (Doc. 22, p.
2, 4). He repeated that this caused mental issues, not physical
issues. (Doc. 22, p. 2). Plaintiff stated Defendants' Exhibit 1-g
(Plaintiff's medical progress notes) shows that he complained
of hearing voices after his dosage was reduced, and was told
to work on his coping skills. (Doc. 22, p. 2). Plaintiff also
questions the inability of Defendants to determine who made
the clerical error which resulted in the overdose. (Doc. 22, p.
3).
2. Summary Judgment Standard
Summary judgment is appropriate if, after viewing the facts
and all reasonable inferences in the light most favorable to
the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986), the record “show[s]
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). “Once a party moving for summary
judgment has made a sufficient showing, the burden rests with
the non-moving party to set forth specific facts, by affidavit
or other evidence, showing that a genuine issue of material
fact exists.” National Bank of Commerce v. Dow Chemical
Co., 165 F.3d 602, 607 (8th Cir. 1999).
The non-moving party “must do more than simply show
that there is some metaphysical doubt as to the material
facts.” Matsushita, 475 U.S. at 586. “They must show there
is sufficient evidence to support a jury verdict in their favor.”
National Bank, 165 F.3d at 607 (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986)). “When opposing
parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.”
Scott v. Harris, 550 U.S. 372, 380 (2007). “A case founded on
speculation or suspicion is insufficient to survive a motion for
summary judgment.” Id. (citing, Metge v. Baehler, 762 F.2d
621, 625 (8th Cir. 1985)).
3. Discussion
Defendants have moved for summary judgment on the
following grounds: (1) Defendants were not deliberately
indifferent to Plaintiff's serious medical needs; (2) Defendant
Sims is not liable to Plaintiff based on the a theory of
respondeat superior; and (3) Plaintiff cannot meet proof with
proof to show a genuine issue of material fact. (Doc. 20, pp.
5-9).
A. No Actual Physical Injury
*3 As a preliminary matter, the Court notes Plaintiff stated
he suffered no physical effects as a result of the overdose and
any subsequent actions or inactions by Defendants after the
overdose was discovered. (Doc. 22, pp. 1-2). Rather, he states
he only suffered mental issues. (Doc. 22, pp. 1-2).
Section 803(d) of the PLRA provides as follows: “No
Federal civil action may be brought by a prisoner confined
in jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior
showing of physical injury....” 42 U.S.C. A. § 1997e(e)
(West, WestlawNext through Pub. L. No. 114-254, approved
March 7, 2013.) Furthermore, “[c]laims under the Eighth
Amendment require a compensable injury to be greater than
de minimis.” Irving v. Dormire, 519 F.3d 441, 448 (8th Cir.
2008).
The PLRA therefore limits the available damages in the
absence of a physical injury but does not preclude a Plaintiff
from pursuing a claim. See Royal v. Kautzky, 375 F.3d 720,
723 (8th Cir. 2004) (The physical injury requirement of the
PLRA “limit[ed] recovery for mental or emotional injury in
all federal actions brought by prisoners” but does not bar the
recovery of nominal and punitive damages); see also Pool
v. Sebastian County, 418 F.3d 934, 942 n.2 (8th Cir. 2005)
(Section 1997e(e) presents an issue of damages under the
PLRA).
The Court could find no case law indicating that the
worsening of mental or emotional symptoms, alone, qualifies
as a compensable physical injury. A survey of all circuits
indicated symptoms such as anxiety, sleeplessness, and
hallucinations, even if considered to have some physical
manifestation or component, do not pass the de minimis injury
hurdle. See e.g. Edler v. Hockley County Comm'rs Court,
589 Fed.Appx. 664 (5th Cir. 2014) (delerium tremors from
alcohol withdrawal, with no medication and with inmate
waking up bloody not frivolous; however, claims for denial
of mental health and mental retardation care not actionable
without physical injury); Amick v. Ohio Dept. of Rehab. and
Corr., 521 Fed.Appx. 354 (6th Cir. 2013) (discontinuation of
antipsychotic drugs, which ultimately resulted in increased
symptoms and death in a fight, did not meet objective
component of deliberate indifference because inmate did
not report symptoms for five months after discontinuation);
Chatham v. Adcox, 334 Fed.Appx. 281 (11th Cir. 2009)
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 118 of 151

Pyle v. Robin Sims, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
(when inmate was repeatedly “crashed” from his Xanax, the
resulting anxiety, nightmares, and hallucinations did not rise
to a level of a physical injury that was greater than de minimis;
he was also being given other psychotropic drugs); Baker v.
Pettis Cnty Jail, No. 06-4092-CV-C-NKL, 2007 WL 4289693
(W.D. Mo. Nov. 28, 2007) (denial/delay of anti-psychotic
drugs to inmate was mere disagreement over diagnosis, and
his unsupported allegation that he suffered extreme mental
anguish is insufficient to support a claim).
Because Plaintiff has not alleged any actual physical injury
in this case, de minimis or otherwise, he is not eligible
to pursue compensatory damages. Plaintiff did, however,
request punitive damages. Assuming a plaintiff can show the
existence of a constitutional violation, punitive and nominal
damages are available under the PLRA even in the absence
of a physical injury. Royal, 375 F.3d at 723-24. Nominal
damages are available to vindicate a violation of rights with
no actual injury. Id. at 724. Punitive damages are available
only when a “ ‘defendant's conduct is shown to be motivated
by evil motive or intent, or when it involves reckless or
callous indifference’ ” to protected federal rights.’ ” Id.
(quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Thus,
the Court must determine if Plaintiff has sufficiently alleged
the constitutional violation of deliberate indifference to his
serious medical needs in order to determine if his case may
proceed as to nominal and punitive damages.
B. Deliberate Indifference to Serious Medical Needs
*4 Plaintiff raised three possible instances of deliberate
indifference to his medical needs: (1) the initial error on his
August MAR which changed his dose of Quetiapine from 800
mg per day to 1600 mg per day; (2) the abrupt decrease of
his Quetiapine from 1600 mg back to 800 mg when the error
was discovered; and (3) Defendant Madewell's alleged failure
to provide treatment options to him when he complained of
auditory hallucinations on September 30, 2015, telling him
instead to work on his coping skills.
Defendants argue there was no deliberate indifference for the
following reasons: (1) the error on the August 2015 MAR
was inadvertent, was entered by an unknown member of the
medical staff, and was promptly corrected on August 5, 2016,
when it was discovered; (2) Defendants Madewell and Sims
are Registered Nurses, and Defendants Piazza and Gothaus
are Licensed Practical Nurses, and as nurses cannot prescribe
drugs or modify prescriptions; (3) neither Nurse Sims, as
Medical Team Administrator, or Nurse Madewell had any
knowledge of the overdose until sometime after August 5,
2015; (4) Plaintiff was administered the increased dosage of
Quetiapine as a result of the misreading of a prescription,
which does not rise to the level of an Eighth Amendment
violation. (Doc. 20)
To prevail on his Eighth Amendment claim, Plaintiff must
prove that Defendants acted with deliberate indifference to his
serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106
(1976). The deliberate indifference standard includes “both
an objective and a subjective component: ‘The [Plaintiff]
must demonstrate (1) that [he] suffered [from] objectively
serious medical needs and (2) that the prison officials actually
knew of but deliberately disregarded those needs.’ ” Jolly
v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (quoting
Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997)).
To show that he suffered from an objectively serious medical
need Plaintiff must show he “has been diagnosed by a
physician as requiring treatment” or has an injury “that is
so obvious that even a layperson would easily recognize the
necessity for a doctor's attention.” Schaub v. VonWald, 638
F.3d 905, 914 (8th Cir. 2011) (internal quotations and citations
omitted). There is no dispute that Plaintiff's schizophrenia is
a serious medical need which satisifies the first prong of the
test.
For the subjective prong of deliberate indifference, “the
prisoner must show more than negligence, more even
than gross negligence, and mere disagreement with
treatment decisions does not give rise to the level of a
constitutional violation. Deliberate indifference is akin to
criminal recklessness, which demands more than negligent
misconduct.” Popoalii v. Correctional Med. Servs, 512 F.3d
488, 499 (8th Cir. 2008) (internal quotation marks and
citations omitted).
Further, it is well settled that a “prisoner's mere difference
of opinion over matters of expert medical judgment or a
course of medical treatment fail[s] to rise to the level of a
constitutional violation.” Nelson v. Shuffman, 603 F.3d 439,
449 (8th Cir. 2010) (internal quotation marks and citations
omitted). An “inmate must clear a substantial evidentiary
threshold to show the prison's medical staff deliberately
disregarded the inmate's needs by administering inadequate
treatment.” Id. Despite this, issues of fact exist when there
is a question of whether or not medical staff exercised
independent medical judgment and whether the decisions
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 119 of 151

Pyle v. Robin Sims, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
made by medical staff fell so far below the reasonable
standard of care as to constitute deliberate indifference. See
Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990).
i. Initial Quetiapine Dosage Error
*5 There is no dispute that Plaintiff recieved an incorrect
dose of Quetiapine starting on August 1, 2015. Defendants
state the overdose was corrected as of August 5, 2015. (Doc.
20, p. 6). In his response, Plaintiff first states he received the
overdose for thirty days, and then states Defendants' Exhibit
1-d (September MAR) shows that he received the overdose
for twenty-seven days. Specifically he notes the September
MAR had 400 mg at one part of the prescription, but 800
mg twice a day in another portion. He notes the handwritten
correction returning it to the proper dose. (Doc. 22).
After a thorough review of the medical record and all
submissions by the parties, the Court finds Plaintiff's
allegations concerning the length of time he received the
overdose are contradicted by the record. According to the
affidavit of Nurse Sims, the detention center pharmacy prints
an MAR for the coming month. A member of the nursing
staff then reviews the MAR. (Doc. 27-1, p. 1). The MARs
have a column on the left indicating the drugs and dosages
for the inmate. For each drug there is a row where initials
are to be placed to indicate who gave the medication on
each day. The MARs for June and July of 2015 indicate
Plaintiff was to take two 200 mg tablets, a total of 400 mg,
twice daily, for a total daily dose of 800 mg. (Doc. 20-1,
pp. 6-7). In the August MAR, the typewritten 200 mg and
400 mg amounts are crossed out and 800 mg is handwritten
in the left column. This resulted in Plaintiff receiving 800
mg of Quetiapine twice a day, for a total daily dose of 1600
mg. A handwritten notation in the administration row of the
MAR indicates the Quetiapine was discontinued on August
5, 2015, and a new notation in the left column underscores
the amount of 400 mg to be given twice a day and is also
dated August 5, 2015. (Doc. 20-1, p. 6). In the September
MAR, the typewritten dosage is 400 mg, two tablets twice a
day. However, the two tablet portion is crossed through, thus
reflecting the correct daily dosage of 800 mg. There are no
notations in the administration row of the September MAR
indicating any changes. It, therefore, appears that the correct
dosage was administered throughout the month of September.
Dr. Saez provided an affidavit stating he corrected the
prescription on August 5, 2015. (Doc. 30-1). Plaintiff's
August MAR and the affidavit of Dr. Saez, who discontinued
the prescription, clearly state the overdose was discontinued
on August 5, 2015. Further, his allegation concerning the
September MAR is not supported by the MAR itself, as the
MAR shows the 800 mg notation was corrected, and there is
nothing in the administration row to show any changes during
the month, as there were with the August MAR. Thus, the
medical record indicates a dosage error was present when the
new MAR was run in September, but that error was corrected
before Plaintiff received any medication under it. Further, as
discussed below, in the absence of actual physical injury, the
length of time he received the overdose is not material to the
deliberate indifference analysis.
The Court is troubled by the fact that Defendants have been
unable to identify the individual responsible for the initial
dosage error, despite numerous affidavits in the summary
judgment motion and summary judgment supplements.
However, based on the affidavits provided by Defendants in
their supplement, it is clear that none of the named Defendants
in this case were responsible for the error. (Docs. 20-2, 20-3,
20-4, 27-1, 27-2, 30-2, 30-3, 30-4). Further, even if one of
the named Defendants had been responsible for the dosage
change, Plaintiff has not provided sufficient evidence to show
that the action rose to the level of deliberate indifference.
*6 “Grossly incompetent or inadequate care can constitute
deliberate indifference in violation of the Eighth Amendment
where the treatment is so inappropriate as to evidence
intentional maltreatment or a refusal to provide essential
care.” Dulany, 132 F.3d at 1240-41 (8th Cir. 1997). A
medication error alone, as to either the type or dose of
medication, is not deliberate indifference. It is, at most,
medical malpractice, which is not actionable under § 1983.
See Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 795 (8th
Cir. 2006) (prescribing both the wrong type and dose of an
anti-seizure medication to an inmate was malpractice but
not deliberate indifference); Jolly, 205 F.3d 1094, 1096-97
(increasing dosage of medication, even to toxicity level, was
not deliberate indifference); Dulany, 132 F. 3d at 1240-41
(administration of lithium to an inmate without testing, which
resulted in blood levels exceeding the recommended standard,
was not grossly innapropriate or evidence of intentional
maltreatment); Hutchinson v. Wexford Health Services, Inc.,
638 Fed.Appx. 930, 933 (11th Cir. 2016), cert. denied, 137 S.
Ct. 70 (2016) (no evidence that “lost documents, inadequate
explanations of medications, incorrect medications, and
delayed medication caused harm to him”); Woolford v.
McDonald, 61 F. Supp. 3d 454, 460 (D. Del. 2014) (“The
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 120 of 151

Pyle v. Robin Sims, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
alleged instances of the CCS defendants' failure to provide
plaintiff his anti-rejection medication for his kidney transplant
or administration of incorrect doses of his medication, even
if true, are indicative of nothing more than negligence on the
part of the medical providers.”); Callaway v. Smith Cnty.,
991 F. Supp. 801, 809 (E.D. Tex. 1998) (Plaintiff's failure
to receive AIDS medication the first five days of jail, and
then only half the dosage for another fifteen days, which
Plaintiff characterized as a mistake, was simple mistake
or negligence rather than deliberate indifference). Compare
Barnett v. Luttrell, 414 Fed App'x 784, 788 (6th Cir. 2011)
(when nurse incorrectly administered anti-seizure medication
rather than pain medication, causing inmate to fall and
sustain a head injury, the medication error was nonactionable
malpractice, but her abandonment of him after his fall was
actionable); Varricchio v. Cnty. of Nassau, 702 F. Supp 2d 40,
58-59 (E.D.N.Y. March 17, 2010) (incorrect administration
of two medications to inmate due to county policy of not
labelling medications resulted in extreme changes in heartrate
sufficient to plead a claim).
Taking Plaintiff's allegations and characterizations as true, the
initial error in his Quetiapine dosage was a simple mistake
which was promptly corrected when discovered. Plaintiff
has provided no allegation or facts which would permit an
inference of intentional maltreatment or refusal to provide
essential care. At most, the error was medical malpractice,
which is not actionable under § 1983. Plaintiff has therefore
failed to produce or allege any summary judgment evidence
that the initial Quetiapine dosage error rose to the level of
deliberate indifference.
ii. Correction of Overdose
There is no dispute that the Quetiapine dosage error was
corrected by immediately reducing the dosage from 1600 mg
per day to 800 mg per day when it was discovered. Plaintiff
argued this resulted in his Quetiapine dosage becoming
less effective because his body had become immune to the
maximum safe dose. None of the named Defendants were
responsible for the decision to reduce the dosage, as it was
Dr. Saez who made the decision. (Doc. 30-1). Further, as
correctly argued by Defendants, the Defendants are all nurses,
and, as such do not have the authority to write or modify
prescriptions. (Doc. 20, p. 7).
Dr. Saez was the physician who made the decision to
immediately reduce Plaintiff's dosage when the error was
discovered. In his affidavit, he stated he gave the order to
reduce Plaintiff's dosage to 800 mg per day on August 5, 2015.
His reasons for doing so were as follows:
My reasoning for immediately
correcting the dosage to 800 mg
per day is based on several factors.
The maximum recommended dose for
Quetiapine is 800 mg per day. I did
not believe it prudent to knowingly
continue administering Quetiapine to a
patient in an amount that exceeds the
maximum recommended daily dose.
Continued administration of doses that
exceed the maximum recommended
dose can lead to acute overdose.
The Physician's Desk Reference states
that, the safety of doses in excess
of 800 mg per day have not been
evaluated. Therefore the potential
risks associated with continuing
to administer doses in excess of
the maximum recommended amount
outweighed any risk of decreasing the
dosage to 800 mg per day.
(Doc. 30-1). Dr. Saez further stated he made adjustments
to Plaintiff's anti-anxiety and anti-depressant medications to
maintain more uniform levels in his bloodstream and better
control of anxiety when he reduced his Quetiapine dosage.
(Doc. 30-1). Based on Dr. Saez's affidavit, it is clear that it was
not deliberate indifference to immediately reduce Plaintiff's
dosage in order to avoid an acute overdose. Indeed, failure
to do so might well have constituted deliberate indifference.
According to the Physician's Desk Reference, overdose side
effects in clinical trials included drowsiness and sedation,
tachycardia (rapid heart beat), hypotension (decreased blood
pressure), hypokalemia (potassium deficiency), and first-
degree heart block. Post—marketing reports of overdose side
effects included coma and death. (Doc. 20-5). Further, Dr.
Saez explicitly weighed the risks of immediately reducing the
dosage versus continuing to prescribe a medication at a dose
well over the maximum safe limit. That Plaintiff disagreed
with this decision is not actionable.
*7 Plaintiff has therefore failed to provide any evidence of
deliberate indifference based on the abrupt reduction of his
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 121 of 151

Pyle v. Robin Sims, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 6
dosage back to the maximum safe dose once the error was
discovered.
iii. Interaction with Nurse Madewell
This leaves Plaintiff's allegations against Nurse Madewell.
Plaintiff alleges he spoke with Madewell about mental issues
after the overdose and asked to speak to a medical doctor.
Plaintiff alleges she only told him to work on his coping
skills. (Doc. 1, p. 7). Plaintiff's medical records show he saw
Madewell on August 18, 2015 and September 30, 2015. (Doc.
20-1, p. 10). On August 18, 2015, the notes indicate Plaintiff
reported his Quetiapine was effective, and denied auditory
or visual hallucinations. He did report anxiety. Madewell
added him to the list to see the medical doctor. On September
30, 2015, the notes indicate Plaintiff reported he was taking
an increased dose of Seroquel (Quetiapine) and now that it
has been cut in half, he is having auditory hallucinations.
Madewell notes she “encouraged coping skills.” Plaintiff
stated he did not have any coping skills, and demanded the
medical doctor. The notes then indicate Plaintiff “pushed
over his chair and anger, walked out cussing.” (Doc. 20-1, p.
10) Madewell's affidavit of January 13, 2017, admits telling
Plaintiff to work on his coping skills, but also provides
additional context to the medical report. She stated she saw
Plaintiff on August 18, 2015 to assess his mental health needs.
At this point he had been on the reduced dose of Quetiapine
for thirteen days. Plaintiff reported no auditory or visual
hallucinations, but did report anxiety. She reported this to
Dr. Saez, and he made adjustments to Plaintiff's anxiety and
anti-depression medications. Her statement concerning the
September 30, 2015, exam is as follows:
I met with David Pyle again on
September 30, 2015, at which time
he reported taking increased Seroquel
(Quetiapine), and since it was cut
in half he reported hearing voices.
Because it had been nearly two
months since his Quetiapine dose was
reduced, I did not believe there was
a correlation. When I suggested that
David Pyle should work on his coping
skills, he became angry, pushed over
his chair, and ended the session by
cursing and walking out. Because he
walked out of the session there was no
opportunity to explore with him any
other treatment options.
(Doc. 30-4, p. 2). Nurse Madewell also noted Plaintiff was
released from the WCDC on or about October 5, 2015. (Doc.
30-4, p. 2). Thus, Plaintiff's allegations that he was denied
medical care by Nurse Madewell are contradicted by the
record, as he terminated the session before other treatment
options could be explored. He was then released from the
WCDC a few days later.
Plaintiff has failed to produce any summary judgment
evidence to show the constitutional violation of deliberate
indifference to his serious medical needs. Because he failed
to do so, Plaintiff is not eligible to pursue a claim for nominal
or punitive damages for his deliberate indifference claim.
Defendants are entitled to judgment in their favor. In view
of this, the Court need not address the Defendants' other
arguments in favor of summary judgment.
4. Conclusion
*8 For the reasons stated, I recommend that Defendants'
summary judgment motion (Doc. 19) be GRANTED and this
case DISMISSED with prejudice.
The parties have fourteen (14) days from receipt of
the report and recommendation in which to file written
objections pursuant to 28 U.S.C. § 636(b)(1). The failure
to file timely objections may result in waiver of the right
to appeal questions of fact. The parties are reminded that
objections must be both timely and specific to trigger de
novo review by the district court.
All Citations
Not Reported in Fed. Supp., 2017 WL 663518
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 122 of 151

Pyle v. Robin Sims, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 7
Footnotes
1 Plaintiff was initially thought to be unincarcerated, and was scheduled to appear in person for a summary
judgment hearing on September 22, 2016. (Doc. 14). On the day of the hearing, it was discovered that Plaintiff
was actually incarcerated in the ADC. The hearing was cancelled, and it was determined Plaintiff's written
response was sufficient for the purposes of ruling on the summary judgment motion. (Doc. 24).
2 Documents submitted by Defendants indicate the correct spelling of Nurse Robin Sims name is Robyn Sims.
3 It is not clear from the Complaint whether Plaintiff is referring to the initial mistake or the subsequent reduction
of his medication and alleged issues arising from that reduction. However, in his response to an interrogatory
he stated Sim's failure to properly oversee the nursing staff resulted in the overuse of prescribed medications.
The Court will therefore interpret his complaint against Sims to refer to the initial mistake.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 123 of 151

Pyle v. Sims, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 662991
Only the Westlaw citation is currently available.
United States District Court, W.D.
Arkansas, Fayetteville Division.
David Martin PYLE, Plaintiff
v.
Head Nurse Robin SIMS; Nurse Judy Madewell; Andrew
Piazza (Nurse); and Nurse Phebe Grothaus, Defendants
No. 5:15-CV-05245
|
Signed 02/17/2017
Attorneys and Law Firms
David Martin Pyle, Springdale, AR, pro se.
James Levi Cook, Dunn, Nutter & Morgan, L.L.P., Texarkana,
TX, for Defendants.
ORDER
P.K. HOLMES, III, CHIEF U.S. DISTRICT JUDGE
*1 The Court has received a report and recommendation
(Doc. 33) from United States Magistrate Judge Erin L.
Setser. No objections have been filed and the deadline to file
objections has passed. The Magistrate recommends that the
Court grant Defendants' motion for summary judgment and
dismiss this case with prejudice. The Magistrate finds that
Plaintiff cannot satisfy the subjective prong of his deliberate
indifference claim.
The Court has reviewed this case and finds that the report and
recommendation is proper, contains no clear error, and should
be and hereby is ADOPTED IN ITS ENTIRETY.
IT IS THEREFORE ORDERED that Defendants' motion for
summary judgment (Doc. 19) is GRANTED and this case is
DISMISSED WITH PREJUDICE.
Judgment will be entered accordingly.
IT IS SO ORDERED this 17th day of February, 2017.
All Citations
Not Reported in Fed. Supp., 2017 WL 662991
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 124 of 151

Ray v. Zamilus, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 4329722
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Clark P. RAY, Plaintiff,
v.
Dr. Gaetan ZAMILUS and
Kathleen Gerbing, Defendants.
13 Civ. 2201 (PGG)
|
Signed 09/27/2017
Attorneys and Law Firms
Michael Langsdorf Nadler, Sipoura Barzideh, Kimberly
Amanda Francis, Michael Joseph Biondi, Paul, Weiss,
Rifkind, Wharton & Garrison LLP, New York, NY, for
Plaintiff.
Daniel A. Schulze, James Brennan Cooney, Attorney General
of the State of New York, New York, NY, for Defendants.
MEMORANDUM OPINION & ORDER
Paul G. Gardephe, United States District Judge
*1 Plaintiff Clark P. Ray is a former inmate at
Otisville Correctional Facility (“Otisville”). The Amended
Complaint alleges that Defendants Dr. Gaetan Zamilus
and Superintendent Kathleen Gerbing acted with deliberate
indifference in failing to provide Ray with necessary medical
treatment over an eleven month period while Ray was
incarcerated at Otisville, (Am, Cmplt. (Dkt. No. 23) ¶¶
41-42) 1
Defendants have moved for summary judgement, contending
that Plaintiff cannot satisfy the objective and subjective
elements of deliberate indifference under the Eighth
Amendment, and that Defendants are entitled to qualified
immunity. (Def. Br. (Dkt. No. 87)) Ray argues that material
issues of fact preclude a grant of summary judgment. (Pltf.
Opp. Br. (Dkt. No. 101))
BACKGROUND 2
A. The Parties
Ray served two terms of imprisonment in the New York
State Department of Corrections and Community Supervision
(“DOC”) prison system. (Pltf. R. 56.1 Resp. (Dkt. No. 103) ¶¶
1-2) Ray’s first term of incarceration ran from June 30, 1998
to January 4, 2011, while his second term ran from October
27, 2011 to May 25, 2013. (Id. ¶¶ 2-3) During his second
term of incarceration, Ray was held at several prisons. In early
2012 he was transferred from Franklin Correctional Facility
to Fishkill Correctional Facility (“Fishkill”). (Id. ¶ 22) On
April 23, 2012, he was transferred from Fishkill to Otisville
Correctional Facility, where he remained until his release on
May 25, 2013. (Id. ¶¶ 3, 62)
Defendant Zamilus is employed by DOC as the acting Facility
Health Services Director at Otisville, and he was the only
doctor assigned to Otisville’s medical unit during the relevant
time period (2012-2013). (Id. ¶¶ 5-6) During this time, Dr.
Zamilus worked as a “half-time physician (i.e., two days
per week; seven-and-a-half hours per day) at Otisville and
a half-time physician at Fishkill.” (Id. ¶ 5) Otisville held
approximately 570 inmates in 2012. (Def. R. 56.1 Reply (Dkt.
No. 108) ¶ 81)
*2 Defendant Gerbing is the Superintendent of Otisville.
(Pltf. R. 56.1 Resp. (Dkt. No. 103) ¶ 8) Her duties
include providing “overall supervision of the facility’s
staff and inmates, including security, administration, and
programs.” (Gerbing Decl. (Dkt. No. 88) ¶ 2) Under DOC
policy, however, the superintendent is not responsible for
directing inmate medical care. (Id. ¶ 5)
B. Hepatitis C
In October or November of 2000, Ray was diagnosed with
Hepatitis C. (Pltf. R. 56.1 Resp. (Dkt. No. 103) ¶ 11) It is
undisputed that Ray suffered from chronic Hepatitis C during
the period between April 23, 2012 and May 25, 2013, while
he was incarcerated at Otisville. (Id. ¶¶ 4, 15)
Hepatitis C is a liver disease caused by the Hepatitis C virus
(“HCV”), which can cause scarring of the liver known as
“fibrosis,” (Id. ¶¶ 12, 16; Nadler Decl., Ex. 5 (Koenigsmann
Dep.) (Dkt. No. 102-5) at 161:19-25) There are four stages
of fibrosis of the liver. Stage four fibrosis is known as
“cirrhosis,” also known as “liver failure.” (Nadler Decl.,
Ex. 5 (Koenigsmann Dep.) (Dkt. No. 102-5) at 161:16-17,
162:5-11) “[T]here is much more urgency to treat” patients
suffering from advanced fibrosis, because it may be too late
to treat a patient once the disease has progressed to cirrhosis.
(Id. at 201:4-16, 203:10-21) It is undisputed that Ray’s disease
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 125 of 151

Ray v. Zamilus, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
had progressed to stage three by the time Ray had arrived at
Otisville. (Pltf. R. 56.1 Resp. (Dkt. No. 103) ¶¶ 4, 15; Def. R.
56.1 Reply (Dkt. No. 108) ¶ 68)
The extent to which Hepatitis C has progressed is a key
determinant of whether medical treatment is necessary. Dr.
Zamilus and Dr. Carl Koenigsmann—Deputy Commissioner
and Chief Medical Officer of DOC—testified that DOC
policy as of August 2012 was that those inmates without
fibrosis “will not be treated”; those with stage one fibrosis
“will be evaluated on an individual basis”; and those with
stage two fibrosis or above “will be offered treatment.” (Def.
R. 56.1 Reply (Dkt No. 108) ¶ 91)
During the relevant time period (2012-2013), the state-of-
the-art treatment for Hepatitis C was a drug cocktail made
up of Ribavirin, Peginterferon, and Telaprevir. (Pltf. R. 56.1
Resp. (Dkt. No. 103) ¶ 26) Peginterferon may cause “[l]ife-
threatening or fatal neuropsychiatric reactions[,] including
suicidal ideation, homicidal ideation, [and] depression ... with
or without previous psychiatric illness.” (Id. ¶ 27) Moreover,
a Hepatitis C patient who did not complete the full prescribed
course of treatment with Telaprevir faced a significant risk
that his disease would become drug-resistant. (Id. ¶¶ 48-49)
C. Liver Biopsy While at Fishkill
On March 16, 2012—during Ray’s incarceration at Fishkill
—Dr. Zamilus conducted a pre-operation physical on Ray to
assess whether he could undergo a liver biopsy to analyze the
status of his Hepatitis C. (Id. ¶ 23) On March 28, 2012, Ray
underwent a liver biopsy at Fishkill. (Id. ¶ 25)
The results of Ray’s liver biopsy became available on April
5, 2012. The biopsy results indicated that Ray had chronic
Hepatitis C, stage three fibrosis. (Def. R. 56.1 Reply (Dkt.
No. 108) ¶ 68) A nurse’s notes from April 23, 2012 state
that Ray was “[r]equesting the results of his biopsy done on
3-28-12 also info about treatment for Hep C,” and that a
follow-up appointment had been scheduled for May 22, 2012.
(Nadler Decl., Ex. 36 (Apr. 23, 2012 Progress Notes) (Dkt.
No. 102-39) at 2) The nurse’s notes further state, “Told PCP
to review results + notify him. Has appointment to F/U PCP
+ discuss Tx. Chart to PCP to review results.” 3 (Id.)
*3 Ray testified that he was informed at Fishkill that he
“was ready for a treatment plan” and that “as soon as [he]
arrived [at his] next facility”—Otisville—“it was in [his] file
that [he] was ready for a treatment plan to start treatment for
chronic Hepatitis C.” (Nadler Decl., Ex. 8 (Ray Dep.) (Dkt.
No. 102-8) at 95:11-96:6; see Nadler Decl., Ex. 33 (Mar. 1,
2012 Request and Report of Consultation) (Dkt. No. 102-36)
at 2 (“PT meets criteria for Hep C Tx. Please schedule for
BA seline liver BX to determine extent of liver damage and
consideration for Hep C Tx.”))
D. Medical Treatment at Otisville
Ray was transferred to Otisville on April 23, 2012. (Pltf. R.
56.1 Resp. (Dkt. No. 103) ¶ 3) Ray claims that he did not
receive proper medical care at Otisville during the period
between April 23, 2012 and March 5, 2013, when he began
multi-drug therapy for his Hepatitis C disease. (Id. ¶¶ 3, 61)
Under DOC Policies on Health Screening of Inmates, when
an inmate is transferred to a new facility, he first meets with
a facility nurse to undergo a health screening and receive
orientation concerning health care services, including the
procedures for Sick Call. (Id. ¶ 31; Koenigsmann Decl., Ex.
G (Dkt. No. 91-7)) On Ray’s first day at Otisville—April 23,
2012 (Pltf. R. 56.1 Resp. (Dkt. No. 103) ¶ 3)—he requested
treatment for his Hepatitis C condition. (Id. ¶ 28; Def. R. 56.1
Reply (Dkt No. 108) ¶ 85; Nadler Decl., Ex. 8 (Ray Dep.)
(Dkt. No. 102-8) at 133:24-135:15, 156:9-157:5)
Ray visited Sick Call at Otisville on July 2, 2012 and July 3,
2012. Progress Notes from the July 2, 2012 Sick Call visit
state that Ray was “coughing up green stuff” and “snotting
up a lot.” (Nadler Decl., Ex, 35 (Progress Notes) (Dkt. No.
102-38) at 2) The progress notes also report that Ray “would
like Tx for Hep C.” (Id.) Dr. Zamilus’s notes concerning
Ray’s July 3, 2012 visit state that Ray had “cold symptoms,”
“fever + chills,” and “general malaise.” (Nadler Decl., Ex. 24
(Progress Notes) (Dkt. No. 102-27) at 2) Ray was held in the
infirmary overnight and Dr. Zamilus signed Ray’s discharge
summary, which indicated that Ray had “no malaise.” (Id.; see
Nadler Decl., Ex. 10 (Zamilus Dep.) (Dkt. No. 102-10) at 197;
19-198:1; Nadler Decl., Ex, 8 (Ray Dep.) (Dkt. No. 102-8) at
210:9-13 (“When I went to sick call, on several occasions, I
complained of cold and flu-type symptoms, severe abdominal
pains, fatigue, vomiting, diarrhea, and feeling like I had been
run down by a dump truck.”))
On August 21, 2012, Ray had his first scheduled appointment
with Dr. Zamilus at Otisville, (Pltf. 56.1 Resp. (Dkt. No. 103)
¶ 33) Dr. Zamilus’s notes of this visit reflect the following:
“Hep C treatment [was] discussed”; “lab ordered PT/PTT,
V[iral] L[oad], Hep B s[urface] [antibody], will do E-form
after lab/psych eval[uation].” (Nadler Decl., Ex. 40 (Aug.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 126 of 151

Ray v. Zamilus, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
21, 2012 Progress Note) (Dkt. No. 102-43) at 2; see also
Nadler Decl., Ex. 10 (Zamilus Dep.) (Dkt. No. 102-10) at
222:6-15 (Zamilus testimony that this is “a note that I saw the
patient, follow-up Hep C, I put patient interested in treatment,
RX, and I put abdominal negative, so that means I checked
the abdomen, he didn't have any complaint, and I put my
assessment Hep C treatment discussed, lab order[ed], these
are the lab[s] that I ordered, PT/PTT, viral load, VL, and
also check Hep B surface antibody, and I added will do e-
form after labs slash psych evaluation, eval or evaluation”);
id. at 277:19-25 (Zamilus testimony that “PT/PTT” stands
for “[p]rothrombin time, partial prothrombin”); Nadler Decl.,
Ex. 5 (Koenigsmann Dep.) (Dkt. No. 102-5) at 166:18-167:2
(Koenigsmann testimony that in order to treat a patient with
Hepatitis C, “you have to have a measurable viral load,
meaning that you have an active hepatitis C infection”)) That
same day, Dr. Zamilus made a referral for Ray to receive a
psychiatric evaluation and additional lab work. (Pltf. Resp. to
56.1 (Dkt. No. 103) ¶¶ 36, 39)
*4 Dr. Zamilus states in his declaration that he “understood
that a psychiatric evaluation was part of the clearance required
by [DOC] to obtain final approval to start Hepatitis C
treatment.” (Zamilus Deck (Dkt. No. 93) ¶ 17) Dr. Zamilus
further states that
[i]t was my understanding and belief
that I could not start Plaintiff’s
Hepatitis C treatment without having a
definite continuity care plan finalized.
Due to the risk that the virus could
develop resistance to drug therapy
if the course of treatment is not
completed, it was critical to successful
treatment, and [DOC] policy, to ensure
that a plan for continuity of care was
in place prior to starting treatment if
the inmate could be released before the
treatment’s completion.
(Id. ¶ 26) The standard course of drug treatment for a Hepatitis
C patient in Plaintiff’s condition ran forty-eight weeks. (Pltf.
R. 56.1 Resp. (Dkt. No. 103) ¶ 45)
Dr. Koenigsmann states that he “required the [DOC] Infection
Control Unit to consult and advise on situations where there
was a potential that an inmate would not finish the entire
course of the prescribed triple therapy,” due to concerns about
drug resistance. (Koenigsmann Deck (Dkt. No. 91) ¶ 11)
Ray’s conditional release date was in April 2013. (Pltf. R. 56.1
Resp. (Dkt. No. 103) ¶ 47)
DOC’s Hepatitis C Primary Care Guidelines (the
“Guidelines” or “DOC Guidelines”) provide that
Anti-HCV therapy should be considered in accordance
with the following criteria:
....
10. No history of major depression or other major
psychiatric illness unless cleared by a psychologist or
psychiatrist to receive anti-HCV treatment. A history of
suicide attempts is generally regarded as an absolute
contraindication of treatment.
....
13. The primary care provider should assess if the inmate
will be incarcerated for the duration of the required
HCV treatment. If there is a possibility that the inmate
will be released prior to completion of treatment[,] then
the provider should have the inmate sign the Hepatitis
C Continuity Program Acceptance Form.... Upon the
patient[']s agreement to participate and comply with
the Hepatitis [C] Continuity Program the provider will
contact the Regional Infection Control Nurse to initiate the
enrollment process into the Continuity Program.
(Nadler Decl., Ex. 23 (DOC Guidelines) (Dkt No. 102-24) at
7-8)
Ray’s next appointment with Dr. Zamilus was on November
29, 2012. Ray and Dr. Zamilus again discussed the treatment
for Ray’s Hepatitis C condition. (Pltf. R. 56.1 Resp. to 56.1
(Dkt. No. 103) ¶ 43) Dr. Zamilus claims that on December
13, 2012, he sent Dr. Koenigsmann a request for Hepatitis
C treatment via an e-file form. (Zamilus Decl. (Dkt. No.
93) ¶ 20) Although the record contains a “Hep C Treatment
Request” form dated December 13, 2012 that contains Ray’s
name, the form does not indicate to whom it was sent, or
whether any action was taken in response to the request.
(Zamilus Decl., Ex. A (Dec. 13, 2012 Hep C Treatment
Request) (Dkt. No. 93-1) at 5)
Dr. Koenigsmann states in his declaration that on October
24, 2012, he issued a “Revision Notice” to medical staff
stating that there was a “new [DOC] Hepatitis C Treatment
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 127 of 151

Ray v. Zamilus, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
Request E-Form.” (Koenigsmann Decl. (Dkt, No. 91) ¶ 8)
Dr. Koenigsmann testified that if Dr. Zamilus submitted the
request to him using the new system in December 2012, he
would have a record of that submission, but no such record
exists. (Nadler Decl., Ex. 5 (Koenigsmann Dep.) (Dkt. No.
102-5) at 258:16-259:1, 260:4-14) 4
*5 On January 23, 2013, Ray filed a grievance complaining
that he had not received treatment for his Hepatitis C
condition. (Nadler Decl., Ex. 67 (First Grievance) (Dkt. No.
102-70) at 2-13) 5
In a January 31, 2013 e-mail to Dr. Koenigsmann, Dr. Zamilus
reported that Ray had filed a grievance complaining that
his Hepatitis C treatment was being delayed. (Koenigsmann
Decl., Ex. D (E-Mail Exchange) (Dkt. No. 91-4) at 1) In his
email, Dr. Zamilus asks, “Can you tell me where are we on
the application, Eform for his hep c. I sent it around early
December.” (Id.)
Later that day, Dr. Koenigsmann replied:
I have no approval listed under this
pt. If not approved I would have
sent you a response asking for more
info etc[.], I have no record of any
e mail sent to you regarding this pt.
I recommend that you send me the
Outlook treatment request again. We
are not using the sysm e mail requests
any longer as is noted in the Hep C
tx practice guideline addendum. If you
are unclear what request to use please
contact me.
(Id.) 6
That same day, Dr. Zamilus submitted an email request to Dr.
Koenigsmann for “HEPC Treatment” for Ray. (Nadler Decl.,
Ex. 50 (Jan. 31, 2013 E-Mail Request) (Dkt. No. 102-53) at
2-4) Dr. Koenigsmann approved the request later that day.
(Nadler Decl. Ex, 42 (Jan. 31, 2013 E-Mail Response) (Dkt.
No. 102-45) at 2) At his deposition, Dr. Koenigsmann testified
that he generally approved Hepatitis C treatment requests
within “twenty minutes to a half an hour.” (Nadler Decl. Ex.
5 (Koenigsmann Dep.) (Dkt. No. 102-5) at 253:11-19)
*6 In approving Ray’s treatment on January 31, 2013, Dr.
Koenigsmann informed Dr. Zamilus that Ray’s conditional
release date was scheduled for April 2013—before the
48-week Hepatitis C treatment would be completed. Dr.
Koenigsmann “recommend[ed] referral to the continuity
program,” and suggested that Dr. Zamilus “contact the
Regional Infection Control Nurse.” (Nadler Decl. Ex. 42 (Jan.
31, 2013 E-Mail Response) (Dkt. No. 102-45) at 2; see Pltf.
R. 56.1 Resp. (Dkt. No. 103) ¶ 47)
Ray’s psychological evaluation—which Dr. Zamilus had
requested on August 21, 2012—occurred on February 5,
2013. (Pltf. R. 56.1 Resp. (Dkt. No. 103) 51)
On February 7, 2013, Nurse Becky Reddish met with Ray to
explain the Continuity of Care Program. (Id. ¶ 53) Ray told
Nurse Reddish where he expected to be living after he was
released. Nurse Reddish determined that the closest medical
provider that could continue Ray’s Hepatitis C treatment was
located approximately 150 miles away. (Id. ¶ 54)
Accordingly, on February 22, 2013, Ray signed a waiver to
stay in prison beyond his conditional release date. (Nadler
Decl., Ex. 60 (Ray Waiver) (Dkt. No. 102-63) at 5) The next
day, Ray signed an addendum to his waiver stating:
It should be made clear that my waiver
of my April 7, 2013, conditional
release date was done solely to receive
treatment for my hepatitis C. Without
the agreement from Health Services
to treat my hepatitis C, I would not
have any reason or desire to waive my
conditional release. Finally, it should
be mentioned that although I have
been required to sign a waiver of my
conditional release date, my treatment
for hepatitis C has not yet begun.
(Id. at 3)
On April 21, 2013, Ray filed a second grievance seeking
to be released from prison and to rescind his waiver of
his conditional release date. (Nadler Decl., Ex. 59 (Second
Grievance) (Dkt. No. 102-62) at 2-4) In his second grievance,
Ray states:
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 128 of 151

Ray v. Zamilus, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
On February 14, 2013, I, Clark P. Ray (Grievant), was
informed by Dr. Gaetan Zamilus, Health Service Director,
that to receive treatment for my hepatitis C (HCY) infection
I would have to agree to remain incarcerated beyond my
conditional release date of April 7, 2013.
On February 22, 2013 I was informed by Ms. Reddish
of Disease Control, that to begin treatment for my HCV
infection I must sign a waiver of my conditional release
date.
On February 22, 2013 I was given a waiver of my
conditional release date to sign and return for distribution.
I signed the waiver and gave it to Mr. Richard Colon,
Offender Rehabilitation Coordinator ...
On February 24, 2013, I served Mr. Richard Colon with
an Addendum to the Conditional Release Waiver signed
February 22, 2013....
I have repeatedly asked the Health Service Department,
to place me in the continuity program, My request began
September of 2012....
(Id. at 3)
Dr. Zamilus testified that Ray signed a conditional release
waiver “[b]ecause ... we could not start treatment until
he agreed to stay for the treatment.” (Nadler Decl.,
Ex. 10 (Zamilus Dep.) (Dkt. No. 102-10) at 314:3-5)
Dr. Koenigsmann states in his declaration that “[f]rom
approximately February 7, 2013, to February 28, 2013, the
[DOC] Infection Control Unit and I were considering whether
Plaintiff should begin his Hepatitis C treatment without
having a definite continuity of care plan in place. Dr. Zamilus
did not participate in my conversations with Ellen Turner
and Becky Reddish of the [DOC] Infection Control Unit, and
did not participate in the decision of whether Plaintiff should
begin treatment.” (Koenigsmann Decl. (Dkt. No. 91) ¶ 12)
*7 On March 5, 2013, Ray began the triple drug therapy
treatment for Hepatitis C. (Pltf. Resp. to 56.1 (Dkt. No. 103)
¶ 61) On May 25, 2013, Ray was released from Otisville,
with continuity of care in place in Albany. (Id. ¶ 62) Ray
completed his treatment on September 18, 2013. (Id. ¶ 64)
Although the standard course of therapy with the three-
drug protocol runs forty-eight weeks, Ray’s treatment was
terminated much earlier—at about twenty-eight weeks. Ray’s
treatment was ended early, because his system was found
to contain no active Hepatitis C infection. (Id. ¶ 45 (citing
Nadler Decl., Ex. 10 (Zamilus Dep.) (Dkt. No. 102-10) at
316:24-319:5; Nadler Decl., Ex. 23 (DOC Guidelines) (Dkt.
No. 102-26) at 12; Nadler Decl., Ex. 53 (Aug. 21, 2015
Follow-Up Appointment) at 2)) As of August 21, 2015, Ray
remained virus-free. (Nadler Decl., Ex. 53 (Aug. 21, 2015
Follow-Up Appointment) at 2)
DISCUSSION
I. SUMMARY JUDGMENT STANDARD
Summary judgment will be granted where “the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” De
Los Santos v. HYS Livery Serv., Inc., No. 12 Civ. 8124 (LTS)
(JCF), 2014 WL 1979924, at *2 (S.D.N.Y. May 14, 2014); see
Fed. R. Civ. P. 56(a). A fact is considered material “if it ‘might
affect the outcome of the suit under the governing law,’ and
an issue of fact is a genuine one where ‘the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.’ ” Holtz v. Rockefeller & Co. Inc., 258 F.3d 62, 69 (2d
Cir. 2001) (quoting Anderson v. Liberty Lobby Inc., 477 U.S.
242, 248 (1986)).
The Second Circuit has instructed that “[t]he party against
whom summary judgment is sought ... ‘must do more than
simply show that there is some metaphysical doubt as to the
material facts.... [T]he nonmoving party must come forward
with specific facts showing that there is a genuine issue for
trial.’ ” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.
2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986) (emphasis omitted)); see
De Los Santos, 2014 WL 1979924, at *2.
II. STANDARD FOR EIGHTH AMENDMENT
CLAIMS
To establish an Eighth Amendment violation arising out
of inadequate medical treatment, a prisoner must prove
“deliberate indifference to [his] serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A prisoner must
satisfy two requirements—one objective and one subjective
in order to prevail on such a ‘deliberate indifference’ claim.”
Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (citing
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).
First, the prisoner must prove that the alleged deprivation
of medical treatment is—in objective terms—“sufficiently
serious,” that is, the prisoner must prove that his medical need
was “a condition of urgency, one that may produce death,
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 129 of 151

Ray v. Zamilus, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 6
degeneration, or extreme pain.” See id. (citing Hemmings
v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996))).
Second, the prisoner must prove that the charged official acted
with a “sufficiently culpable state of mind.” Salahuddin v.
Goord, 467 F.3d 263, 280 (2d Cir. 2006). “This requires that
the prisoner prove that the charged official ‘knows of and
disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” ’ Johnson, 412 F.3d at
403 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Deliberate indifference exists when an official “knows that
inmates face a substantial risk of serious harm and disregards
that risk by failing to take reasonable measures to abate it.”
Farmer, 511 U.S. at 847. “Deliberate indifference requires
more than negligence, but less than conduct undertaken for
the very purpose of causing harm.” Hathaway v. Coughlin, 37
F.3d 63, 66 (2d Cir. 1994). “Because the Eighth Amendment
is not a vehicle for bringing medical malpractice claims, nor a
substitute for state tort law, not every lapse in prison medical
care will rise to the level of a constitutional violation.” Smith
v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2002) (citing
cases).
*8 “It is well-established that Hepatitis C qualifies as
a serious medical condition for purposes of an Eighth
Amendment analysis.” Pabon v. Wright, No. 99 Civ. 2196
(WHP), 2004 WL 628784, at *1 (S.D.N.Y. Mar. 29, 2004),
aff'd, 459 F.3d 241 (2d Cir. 2006). Where a plaintiff “suffered
from a delay in treatment, rather than a complete lack of
treatment, [however,] the objective element must be satisfied
by harm that resulted from the delay.” Graham v. Wright, No.
01 Civ. 9613 (NRB), 2004 WL 1794503, at *5 n.7 (S.D.N.Y.
Aug. 10, 2004), aff'd, 136 Fed.Appx. 418 (2d Cir. 2005)
(citing Smith, 316 F.3d at 186).
Courts (and juries) may “consider the absence of adverse
medical effects in evaluating the objective sufficiency of [an]
Eighth Amendment claim.” Smith, 316 F.3d at 187 (“The
absence of adverse medical effects or demonstrable physical
injury is one such factor that may be used to gauge the severity
of the medical need at issue.”) (citing cases). “Indeed, in most
cases, the actual medical consequences that flow from the
alleged denial of care will be highly relevant to the question
of whether the denial of treatment subjected the prisoner to a
significant risk of serious harm.” Id.
Proof of actual physical harm is not required, however. “[A]n
Eighth Amendment claim may be based on a defendant’s
conduct in exposing an inmate to an unreasonable risk of
future harm and ... actual physical injury is not necessary in
order to demonstrate an Eighth Amendment violation.” Id.
at 188 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)
(the potential future health risk caused by exposure to second
hand smoke may form the basis for relief under the Eighth
Amendment)). “ ‘[A]lthough demonstrable adverse medical
effects may not be required under the Eighth Amendment,
the absence of present physical injury will often be probative
in assessing the risk of future harm.’ ” DiChiara v. Wright,
No. 06 Civ. 6123 (KAM) (LB), 2011 WL 1303867, at *7
(E.D.N.Y. Mar. 31, 2011) (quoting Smith, 316 F.3d at 188).
III. ANALYSIS
Defendants argue that (1) Ray cannot satisfy either the
objective or subjective elements of his deliberate indifference
claim against Dr. Zamilus; (2) Superintendent Gerbing had
no personal involvement, because she “never participated in
Plaintiff’s Hepatitis C treatment or supervised Dr. Zamilus'
treatment of Plaintiff’s Hepatitis C”; and (3) both Defendants
are entitled to qualified immunity, (Def. Br. (Dkt. No. 87) at
1.7-26)
Ray argues, however, that for an “eleven month span, the
minimal attention that Dr. Zamilus provided to Mr. Ray was
‘so woefully inadequate as to amount to no treatment at all.”
’ (Pltf. Opp. Br. (Dkt. No. 101) at 23 (quoting Johnson, 234 F.
Supp. 2d at 360)) As to Superintendent Gerbing, Ray argues
that she “was personally involved in the denial of Mr. Ray’s
medical care through her role in rejecting his grievance” (id.
at 28-29), and that she “is responsible for the violation of Mr.
Ray’s Eighth Amendment rights because she was ‘aware of
the [under] staffing problem [at Otisville] but fail[ed] to take
corrective action.” ’ (Id. at 31) (quoting Greason v. Kemp, 891
F.2d 829, 838 (11th Cir. 1990)) Ray also asserts that “[n]either
Defendant has established an affirmative defense of qualified
immunity.” (Id. at 32)
A. Delay of Treatment v. Denial of Treatment
“Eighth Amendment cases regarding inadequate medical care
generally fall into two categories: denial of treatment and
delay in treatment [and ...] the analyses are subtly different.”
Ippolito v. Goord, No. 05 Civ. 6683 (MAT), 2012 WL
4210125, at *9 (W.D.N.Y. Sept. 19, 2012).
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 130 of 151

Ray v. Zamilus, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 7
*9 In the Amended Complaint—filed while Ray was
proceeding pro se, Ray asserts a claim for “delay in treatment”
under the Eighth Amendment. (See Am. Cmplt. (Dkt. No.
23) 11, 44) In opposing Defendants' motion for summary
judgment, however, Ray—now represented by counsel—
argues that he was “denied treatment for his advanced
Hepatitis C from April 2012 through March 2013” and that
“Defendants incorrectly classify this action [as] a ‘delay of
treatment’ case in order to heighten Mr. Ray’s burden.” (Pltf.
Opp. Br. (Dkt. No. 101) at 21)
There is evidence before the Court showing that (1) Ray
requested treatment for his Hepatitis C when he arrived at
Otisville on April 23, 2012 (Pltf R. 56.1 Resp. (Dkt. No. 103)
¶¶ 3, 28; Def. R. 56.1 Reply (Dkt. No. 108) ¶ 85; Nadler
Decl., Ex. 8 (Ray Dep.) (Dkt. No. 102-8) at 133:24-135:15,
156:9-157:5); (2) Ray began treatment on March 5, 2013,
while incarcerated at Otisville (Pltf. R. 56.1 Resp. (Dkt. No.
103) ¶ 61); (3) Ray was released from Otisville on May 25,
2013, with continuity of care in place (id. ¶ 62); (4) as of May
30, 2013, there was no evidence of the Hepatitis C virus in
Ray’s system (id. ¶ 63); (5) Ray completed his treatment on
September 18, 2013 (id. ¶ 64); and (6) there continues to be
no evidence of the Hepatitis C virus in Ray’s system. (Id.)
Given this record, this Court concludes that this case involves
a delay in treatment, rather than a denial of treatment.
See, e.g., Graham, 2004 WL 1794503, at *5 (plaintiff was
diagnosed with Hepatitis C on March 12, 2001 but his drug
therapy did not begin until February 26, 2003; court addressed
Eight Amendment claim as a “delay in treatment” case);
DiChiara, 2011 WL 1303867, at *7 (plaintiff contended that
defendant had provided no treatment for his Hepatitis C
condition for one year; court addressed Eight Amendment
claim as a “delay in treatment” case).
B. Ray Has Not Offered Sufficient Evidence to
Satisfy the Objective Prong of an Eighth Amendment
Deliberate Indifference Claim
Defendants argue that Ray “does not meet the objective
component [of his deliberate indifference claim] because
the undisputed facts show that the alleged delay did not
exacerbate his condition or worsen his prognosis for effective
treatment.” (Def. Br. (Dkt. No. 87) at 18) Ray argues,
however, that summary judgment is precluded because
“[d]uring the eleven months that Mr. Ray was denied
treatment, he not only suffered from severe abdominal pain,
but also nausea, diarrhea, cold- and flu-like symptoms, and
intense fatigue.” (Pltf. Opp. Br. (Dkt. No. 101) at 22)
As noted above, in order to establish an Eighth Amendment
violation for deliberate indifference, plaintiff must satisfy
both an objective and a subjective element. See Smith, 316
F.3d at 183. To satisfy the objective prong of an Eighth
Amendment claim, a plaintiff’s injury must be sufficiently
serious. See id. at 184 (holding that “ ‘[b]ecause society
does not expect that prisoners will have unqualified access
to health care,’ a prisoner must first make this threshold
showing of serious illness or injury in order to state an Eighth
Amendment claim for denial of medical care”) (quoting
Hudson v. McMillan, 503 U.S. 1, 9 (1992)).
Moreover, where an inmate alleges a delay in treatment—
rather than an absolute denial of treatment—“it is appropriate
to focus on the challenged delay ... in treatment rather than the
prisoner’s underlying medical condition alone in analyzing
whether the alleged deprivation is, in ‘objective terms,
sufficiently serious’ to support an Eighth Amendment claim.”
Id. at 185 (quoting Chance, 143 F.3d at 702) (emphasis
in Smith). “A defendant’s delay in treating an ordinarily
insignificant medical condition can become a constitutional
violation if the condition worsens and creates a ‘substantial
risk of injury.’ ” Graham, 2004 WL 1794503, at *4 (quoting
Smith, 316 F.3d at 186). “Conversely, delay in treating a life-
threatening condition may not violate the Eighth Amendment
if the lapse does not cause any further harm beyond that
which would occur even with complete medical attention.”
Id. (citing Smith, 316 F.3d at 186).
*10 In sum, “the case law clearly establishes that the
delay in treatment does not become a constitutional violation
merely because the underlying medical condition, here,
Hepatitis C, is indisputably a serious one.” DiChiara, 2011
WL 1303867, at *7. “The court must instead look to ‘all
relevant facts and circumstances’ when determining whether
a delay in treatment is ‘objectively serious’ for Eighth
Amendment purposes.” Id. (quoting Smith, 316 F. 3d at 187).
In determining whether a delay in treatment is “objectively
serious” for Eighth Amendment purposes, courts and juries
are “entitled to consider the absence of adverse medical
effects” associated with the delay in treatment. Smith, 316
F.3d at 187.
Although the Second Circuit has “never required plaintiffs
alleging a denial of adequate medical care in a Section 1983
action to produce expert medical testimony,” Hathaway, 37
F.3d at 68, multiple district courts in this Circuit, and at
least four Circuit courts, have concluded that a plaintiff
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 131 of 151

Ray v. Zamilus, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 8
who complains that a delay in medical treatment rose
to a constitutional violation must place verifying medical
evidence in the record to establish the detrimental effect of
the delay in medical treatment. See, e.g., Bennett v. Erie Cty.
Holding Ctr. Med. Dep't, No. 03 Civ. 6393 (P), 2006 WL
897817, at *9 (W.D.N.Y. Mar. 31, 2006) (granting summary
judgment where “[plaintiff] has not shown that the surgery
should have been performed sooner ... or that substantial harm
resulted from the delay.... He has simply offered no persuasive
medical evidence that surgery should have been conducted
during the period of time that he was incarcerated ... or that his
offset jaw resulted from the failure to perform such surgery
during that time frame.”); R.T. v. Gross, 298 F. Supp. 2d
289, 296-97 (N.D.N.Y. 2003) (granting summary judgment
“[b]ecause Plaintiff has not submitted any verifiable evidence
indicating that a failure to treat his condition adversely
affected his prognosis”); Llorente v. Rozeff, No. 99 Civ.
1799, 2001 WL 474261, at *4 (N.D.N.Y. Apr. 12, 2001)
(granting summary judgment where plaintiff “acknowledges
that he has not identified any expert who will testify that
his injury was aggravated as a result of the claimed delay
in medical treatment ... and admits that no medical records
exist which supports that a delay in medical care resulted in
aggravation of his injury”); see also Smith, 316 F.3d at 186
(citing Hill v. Dekalb Reg'l Youth Pet. Ctr., 40 F.3d 1176,
1188-89 (11th Cir. 1994) for the proposition that the “delay
in medical treatment must be interpreted in the context of the
seriousness of the medical need, deciding whether the delay
worsened the medical condition, and considering the reason
for delay”); Williams v. Liefer, 491 F.3d 710, 714-15 (7th Cir.
2007) (“In cases where prison officials delayed rather than
denied medical assistance to an inmate, courts have required
the plaintiff to offer ‘verifying medical evidence’ that the
delay (rather than the inmate’s underlying condition) caused
some degree of harm.... That is, a plaintiff must offer medical
evidence that tends to confirm or corroborate a claim that the
delay was detrimental.”); Surber v. Dixie County Jail, 206
Fed. Appx. 931, 933 (11th Cir. 2006) (same); Laughlin v.
Schriro, 430 F.3d 927, 929 (8th Cir. 2005) (same); Napier v.
Madison Cty., Ky., 238 F.3d 739, 742 (6th Cir. 2001) (“[a]n
inmate who complains that delay in medical treatment rose
to a constitutional violation must place verifying medical
evidence in the record to establish the detrimental effect of
the delay in medical treatment to succeed”).
*11 Numerous courts have considered whether a delay
in providing treatment for Hepatitis C rises to the level
of an Eighth Amendment violation, Where such claims
have survived summary judgment, they generally have been
supported by medical evidence demonstrating that the delay
in treatment either made the eventual treatment less effective,
or presented a risk that treatment would be less effective.
See, e.g., Parks v. Blanchette, 144 F. Supp. 3d 282, 314
(D. Conn. 2015) (finding that plaintiff “introduced evidence
sufficient to raise a genuine question of material fact as to
whether the delay in receiving Hepatitis C treatment was
sufficiently serious” where plaintiff’s expert “has indicated
that a delay in treatment for Hepatitis C decreases its
effectiveness”); Ippolito, 2012 WL 4210125, at *11-12
(where treatment for Hepatitis C had been delayed for seven
to nine years, and plaintiff had offered expert testimony that
early treatment presented a better chance of arresting the
disease’s progression, plaintiff had offered evidence sufficient
to raise a triable question of fact on the objective prong);
DiChiara, 2011 WL 1303867, at *7-8 (finding that “the
evidence proffered was sufficient to raise a question of fact
regarding the seriousness of the delay in treatment” where
“plaintiff ... presented the affidavit and testimony of his
expert, Dr. Klion, which ... supports plaintiff’s position that
the delay in treatment was serious”). 7
Conversely, where a plaintiff has not offered medical
evidence demonstrating disease progression or a worse
prognosis, defendants have been granted summary judgment.
See, e.g., Byng v. Wright, No. 09 Civ. 9924 (PKC) (JCF),
2012 WL 967430, at *10 (S.D.N.Y. Mar. 20, 2012) (finding
that plaintiff’s “allegation [of a delay in treatment of his
Hepatitis C] ... fails under both prongs of the deliberate
indifference standard,” because he “comes forward with no
evidence that he sustained a serious adverse health effect
between his September 27[, 2007] visit with Dr. Mamis and
his October 23[, 2007] consultation with Dr. Rush”); Motta
v. Wright, No. 9:06 Civ. 1047, 2009 WL 1437589, at *15
(N.D.N.Y. May 20, 2009) (three and a half year delay in
Hepatitis C treatment; “[t]he court ... [found] that plaintiff
ha[d] not raised a material issue of fact regarding the objective
factor in the Eighth Amendment analysis [because t]here
[wa]s no evidence that the delay was ‘substantially serious”
’; plaintiff had not offered evidence that “drug therapy in
2002 or 2003 would have been any more successful than the
course of therapy [plaintiff] received in 2006,” and thus had
“not raised a genuine issue regarding the objective prong of
the test”); Farid v. Ellen, No. 01 Civ. 8292 (PKC), 2006 WL
59517, at * 10-11 (S.D.N. Y, Jan. 11, 2006), aff'd, 593 F.3d
233 (2d Cir. 2010) (granting summary judgment in Hepatitis
C delay in treatment case, where “[d]espite plaintiff’s detailed
record of various alleged lapses by defendants in treating his
condition, plaintiff has come forward with no evidence of
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 132 of 151

Ray v. Zamilus, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 9
how this alleged delay exacerbated his condition or worsened
his prognosis for effective treatment”; “no reasonable jury
could conclude that the alleged delay in plaintiff’s medical
treatment caused any harm to him that would be actionable
under the Eighth Amendment”); Graham, 2004 WL 1794503,
at *5 (granting summary judgment in delay in treatment
Hepatitis C case where evidence showed that plaintiff had
“no more than a five percent chance” of responding to the
medication had it been administered earlier).
*12 Here, Plaintiff has not introduced “verifying medical
evidence” that his Hepatitis C condition worsened as a result
of the delay in treatment, or that he faced a worse prognosis
as a result of the delay in treatment. Indeed, the undisputed
evidence shows that once Ray received treatment, the virus
was quickly eradicated, and he remains virus-free. (Pltf.
Resp. to 56.1 (Dkt. No. 103) ¶ 45 (citing Nadler Decl.,
Ex. 10 (Zamilus Dep.) (Dkt. No. 102-10) at 316:24-319:5;
Nadler Decl., Ex. 23 (DOC Guidelines) (Dkt. No. 102-26)
at 12; Nadler Decl., Ex. 53 (Aug. 21, 2015 Follow-Up
Appointment) at 2))
As to medical evidence, Ray offers only Dr. Koenigsmann’s
testimony that “there is much more urgency to treat” patients
suffering from advanced fibrosis, because it may be “too late”
to treat a patient “once a patient has cirrhosis.” (Nadler Decl.,
Ex. 5 (Koenigsmann Dep.) (Dkt. No. 102-5) at 201:4-16,
203:10-21, 204:10-16) But Dr. Koenigsmann did not speak to
the issue of whether Ray’s Hepatitis C condition worsened—
or whether he faced a risk of it worsening—as a result of the
delay in treatment.
Instead of offering “verifying medical evidence,” Ray relies
on his own subjective account of symptoms he experienced
during the eleven month delay in treatment. At his deposition,
Ray testified that—between April 2012 and March 2013—
he experienced “vomiting,” “diarrhea,” “cold and flu-type
symptoms,” “a fog of major fatigue” such that he “barely
[could] function,” “abdominal pain like a sword” and that
he felt as if he had been “run over by a truck.” (Nadler
Decl., Ex. 8 (Ray Dep.) (Dkt. No. 102-8) at 140:16-141:24,
232:12-234:7) Ray contends that all of these symptoms are
associated with Hepatitis C. (Pltf. Opp. Br. (Dkt. No. 101) at
16, 24-25, 32)
DOC’s Hepatitis C Primary Care Practice Guidelines indicate
that the following “symptoms and consequences” are
associated with a Hepatitis C infection:
Approximately 20% of persons
exposed to the virus develop
symptoms which may include
jaundice (yellowing of the skin
and whites of the eyes), fatigue,
dark colored urine, stomach pain,
loss of appetite and nausea. After
the initial infection, 15-25 percent
will recover and 75-85 percent will
become chronically infected (life-
long infection). Approximately 70
percent of persons chronically infected
may develop liver disease, sometimes
decades after initial infection.
(Nadler Decl., Ex. 23 (DOC Guidelines) (Dkt. No. 102-25)
at 10)
When asked at his deposition “what are the symptoms of ...
liver disease,” Dr. Koenigsmann testified:
You can develop ascites, which is
fluid collections in the abdomen. You
can have protein imbalances where
you develop frank congestive heart
failure, leg edema. You can have,
I presume, to some degree fatigue.
You can get problems with your—
a substance called bilirubin as the
liver fails and that can cause pigment
changes, you turn yellow, you can
have a lot of itching from that, and
ultimately chronic hepatitis C can
cause the development of liver cancer,
which has a whole host of other
symptoms and problems.
(Nadler Decl., Ex. 5 (Koenigsmann Dep.) (Dkt. No. 102-5) at
161:1-12) Dr. Koenigsmann further testified that symptoms
could also include excess fluid in the abdomen that could
result in abdominal pain. (Id. at 163:18-23) Nurse Shylo
Goin Tavares testified that late-stage symptoms of HCV
could also include “an enlarged liver, you could have pain
in your liver area, which is your right upper quadrant of
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 133 of 151

Ray v. Zamilus, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 10
your abdomen.” (Nadler Dec., Ex. 3 (Tavares Dep.) (Dkt. No.
102-3) at 18:12-20)
*13 There is no evidence that Ray suffered jaundice,
itching, heart failure, leg edema, dark colored urine, or liver
cancer during the eleven-month delay in treatment. 8 There
is evidence that Ray made Sick Call visits to Otisville’s
infirmary on July 2 and 3, 2012 because of a cold. According
to an Admission and Discharge Summary entered on July
3, 2012 by Zamilus, at that time Ray suffered from “cold
symptoms,” “fever + chills,” and “general malaise.” (Nadler
Decl., Ex. 24 (Progress Notes) (Dkt. No, 102-27) at 2)
Ambulatory Health Record Progress Notes entered on July
3, 2012 state “cold Sx” “general malaise”; skin—cold +
clammy” “fatigue” “fever/chills,” (Nadler Decl., Ex. 34
(Progress Notes) (Dkt. No. 102-37) at 2) Notes entered on
“7-2-1 [2]” state that Ray was “coughing up green stuff” and
“snotting up a lot.” (Nadler Decl., Ex, 35 (Progress Notes)
(Dkt. No. 102-38) at 2) Ray was treated by Dr. Zamilus, and
by July 4, Ray was “feel[ing] much better.” Doctor Zamilus’s
discharge sheet states that, by July 4, 2012, Ray had “no
malaise,” (Nadler Decl., Ex. 24 (Progress Notes) (Dkt. No.
102-27) at 2-4) In any event, there is no evidence that cold
and flu-like symptoms are associated with a delay in receiving
treatment for Hepatitis C.
Ray now alleges, however, that he was suffering from
abdominal pain during the eleven-month period of delay,
and he argues that this is a symptom that is associated with
Hepatitis C. (Pltf. Opp. Br. (Dkt. No. 101) at 16, 24-25, 32)
While the parties have provided extensive records concerning
Ray’s infirmary visits drying the eleven-month period of
delay—including visits on July 2 and 3, 2012, August 21,
2012, and November 29, 2012—there is no indication in these
records that Ray ever complained about stomach pain. To the
contrary, Dr. Zamilus’s notes for Ray’s August 21, 2012 visit
indicate that Dr. Zamilus explicitly asked Ray whether he
was experiencing abdominal discomfort, and Ray indicated
that he “didn't have any complaint.” 9 (Nadler Decl., Ex. 10
(Zamilus Dep.) (Dkt. No. 102-10) at 222:6-15, 223:2-23; see
Nadler Decl., Ex. 40 (Aug. 21, 2012 Progress Note) (Dkt. No.
102-43) at 2 (Dr. Zamilus circled “negative” for “ABD”—
abdomen)) The Court concludes that Ray has not offered
evidence sufficient to demonstrate that he suffered abdominal
pain that was caused by the delay in initiating treatment for
his Hepatitis C condition.
More generally, the Court finds that Ray has not offered
evidence sufficient to demonstrate that the alleged eleven-
month delay in his Hepatitis C treatment (1) caused his
Hepatitis C condition to worsen; (2) presented a risk that
the eventual treatment would not be successful or otherwise
caused him to have a worse prognosis; or (3) caused any
adverse medical effect. Because Ray has not offered evidence
sufficient to create a material issue of fact as to the objective
prong of the Eighth Amendment inquiry, Defendants are
entitled to summary judgment.
CONCLUSION
*14 For the reasons stated above, Defendants' motion for
summary judgment is granted. The Clerk of Court is directed
to terminate the motion (Dkt. No. 86) and to close this case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 4329722
Footnotes
1 Unless otherwise indicated, (1) all cites are to the docket in the instant action; and (2) the page numbers of
documents referenced in this Order correspond to the page numbers designated by this District’s Electronic
Case Filing system.
2 To the extent that this Court relies on facts drawn from a party’s Local Rule 56.1 statement, it has done so
because the opposing party has either not disputed those facts or has not done so with citations to admissible
evidence. See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (“If the opposing party ...
fails to controvert a fact so set forth in the moving party’s Rule 56.1 statement, that fact will be deemed
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 134 of 151

Ray v. Zamilus, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 11
admitted.”) (citations omitted). Where Plaintiff objects to Defendants' characterization of cited evidence, and
has presented an evidentiary basis for doing so, the Court relies on Plaintiff’s characterization of the evidence.
See Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001) (court must draw all rational factual inferences
in non-movant’s favor in deciding summary judgment motion). Unless otherwise indicated, the facts cited by
the Court are undisputed.
3 Testimony from Dr. Zamilus and Dr. Koenigsmann establishes that “TX” refers to treatment; “F/U” refers to
follow up; and “PCP” refers to primary care physician. (See Nadler Decl., Ex. 5 (Koenigsmann Dep.) (Dkt.
No. 102-5) at 242:5-12; id., Ex. 10 (Zamilus Dep.) (Dkt. No. 102-10) at 200:8-12)
4 Dr. Koenigsmann testified that the transition to the new Outlook e-form system was made in about August
2012, and that Dr. Zamilus should have been aware of the system switch at least four months before he
requested Ray’s Hepatitis C treatment. (Id. at 259:2-260:3)
5 On February 1, 2013, the Inmate Grievance Resolution Committee (“IGRC”) issued a split decision
concerning Ray’s grievance. Some members of the IGRC concluded that Ray’s grievance was “outside the
purview of the IGRC,” while others recommended that Ray be given “immediate medical treatment for his
chronic illness, due to the serious nature of [his] disease, which cause[s] permanent liver damage.” The IGRC
recommended that Ray’s grievance be “sen[t] to Superintendent [Gerbing] for review.” (Nadler Decl., Ex. 68
(IGRC Split Decision) (Dkt. No. 102-71) at 2)
On February 6, 2013, Superintendent Gerbing denied Ray’s grievance, agreeing that it was outside the
purview of the IGRC:
This grievance has been investigated and responded to by the Facility Health Services Director of the
facility, Dr. Zamilus. Per Dr. Zamilus, the grievant was last seen 11/29/12 regarding his Hepatitis C. On
December 13, 2012 a request to begin Hepatitis C treatment was submitted to the Medical Director in
Albany. The medical department is currently waiting for a response.
All actions are outside the purview of the IGRC. The medical department has done their part in putting
in the request to begin treatment. However, they are waiting for approval from Albany prior to beginning
such treatment.
(Nadler Decl., Ex. 58 (Gerbing Grievance Response) (Dkt. No. 102-61) at 2)
6 Dr. Koenigsmann states in his declaration that “[o]n December 13, 2012, according to Plaintiff’s medical
records, Dr. Zamilus filled out and sent to me a request for Hepatitis C treatment for Plaintiff via the new e-file
form.... However, on January 31, 2013, since I could not locate the initial e-form request sent by Dr. Zamilus
on December 13, 2012, I instructed Dr. Zamilus to re-send the treatment request form.” (Koenigsmann Decl.
(Dkt. No. 91) ¶ 9)
7 The DiChiara court relied on extensive medical evidence in finding “a question of fact about whether the
delay in treating his HCV was ‘objectively serious’ ”: Plaintiff’s expert, “Dr. Klion[,] stated that treatment should
be initiated ‘[o]nce diagnosis of hepatitis C is established and there is evidence of progressive disease’
because treatment at that stage ‘has the best chance of arresting the disease’.... Further, Dr. Klion stated that
‘treatment with interferon, which is one of the drugs used in treating hepatitis C, protects the liver from further
damage by slowing scarring and is therefore beneficial even to patients who end up being non-responders.”
DiChiara, 2011 WL 1303867, at *8.
Moreover, the record demonstrated that “prior to the delay in treatment, plaintiff possessed only one of the
negative predictors to treatment, his genotype, and not the other, the high viral load. It was only after the
delay that his viral load increased ... and that his chances of succeeding in the treatment decreased even
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 135 of 151

Ray v. Zamilus, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 12
further.” Id. at *7. In DiChiara, unlike here, plaintiff also failed to clear the virus to undetectable amounts during
his first 48-week course of treatment. See id. “Plaintiff was left with two options after this: leave the infection
untreated, risking cirrhosis of the liver, cancer, or death, or go through a second round of treatment, enduring
the number of side effects associated with the antiviral therapy.” Id.
[A]lthough Dr. Klion could not quantify how the success in treatment would be affected by a delay, it was
his expert opinion that early treatment presented a better chance of arresting progression of the disease
and protecting the liver. While plaintiff was ultimately successful in clearing the virus after he was released
from prison, he has still presented sufficient evidence to raise a disputed question of material fact for the
jury whether the delay in treatment had an adverse medical effect of decreasing his chance of clearing the
virus and was sufficiently serious, even if he cannot show a physical injury.
Id. at *8.
8 Ray has submitted a letter he wrote to his mother on August 23, 2012, in which he states that “there is [b]lood
in my urine.” (Nadler Decl., Ex. 25 (Ray Letter) (Dkt. No. 102-28) at 4) This letter constitutes inadmissible
hearsay and cannot be considered at summary judgment. See Fed. R. Civ. P. 56(c) (requiring parties to
“produce admissible evidence to support [factual assertions]”); Presbyterian Church Of Sudan v. Talisman
Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009) (“ ‘only admissible evidence need be considered by the trial
court in ruling on a motion for summary judgment’ ”) (quoting Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.
1997)); Colon ex rel. Molina v. BIC USA, Inc., 199 F. Supp. 2d 53, 68 (S.D.N.Y. 2001) (“When deciding a
motion for summary judgment, a federal district court may consider only admissible evidence”).
9 While there are no medical records before the Court indicating that Ray complained about abdominal pain
during the eleven-month period of delay in treatment, there is evidence that Ray complained about stomach
pain on September 25, 2015, more than two years after his treatment for Hepatitis C had been completed.
(Cooney Decl., Ex. A (Sept. 25, 2015 Doctor’s Visit) (Dkt. No. 107-1) at 2-3)
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 136 of 151

Revels v. Correctional Medical Care, Inc., Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 1578157
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Crystal REVELS, as Administratrix of
the Estate of Michael Revels, Plaintiff,
v.
CORRECTIONAL MEDICAL
CARE, INC., et al., Defendants.
9:17-cv-0088 (MAD/TWD)
|
Signed 03/28/2018
Attorneys and Law Firms
LAW OFFICES OF ELMER R. KEACH, III, P.C., ELMER
R. KEACH, III, ESQ., MARIA K. DYSON, ESQ., One Pine
West Plaza - Suite 109, Albany, New York 12205, Attorneys
for Plaintiff.
STEINBERG, SYMER & PLATT, LLP, JONATHAN E.
SYMER, ESQ., Steinberg, Symer & Platt, LLP, 27 Garden
Street, Poughkeepsie, New York 12601, Attorneys for
Defendants Correctional Medical Care, Inc., CBH Medical,
P.C., Emre Umar, and Deiah Farley.
THUILLEZ, FORD LAW FIRM, MOLLY C. CASEY, ESQ.,
20 Corporate Woods Boulevard - 3rd Floor, Albany, New
York 12211-1715, Attorneys for Defendant Russell Fricke.
GOLDBERG SEGALLA, LLP, CHELSEA E. MANOCCHI,
ESQ., JONATHAN BERNSTEIN, ESQ., 8 Southwoods
Boulevard - Suite 300, Albany, New York 12211-2526,
Attorneys for Defendants Schenectady County, Dominic
D'Agostino, and Jim Barrett.
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, U.S. District Judge
I. INTRODUCTION
*1 Plaintiff Crystal Revels, as administratrix of the estate
of Michael Revels, brought this action alleging federal
and state claims against Defendants Correctional Medical
Care, Inc. (“CMC”), CBH Medical, P.C. (“CBH”), Emre
Umar, Nurse Deiah Farley, John Does 1-3 (collectively, the
“CMC Defendants”), Schenectady County, Sheriff Dominic
D'Agostino, Jail Administrator Jim Barrett (collectively, the
“County Defendants”), and Doctor Russell Fricke. See Dkt.
No. 1. 1 Plaintiff's claims arise out of Mr. Revels's medical
care while incarcerated at the Schenectady County Jail.
Presently before the Court are three separate motions to
dismiss and a motion to strike filed by Defendants. See Dkt.
Nos. 27, 28, 30. For the following reasons, the motions are
granted in part and denied in part.
II. BACKGROUND 2
A. The Decedent's Medical Care
When Michael Revels entered Schenectady County jail on
September 9, 2015, he was dealing with a number of health
problems. See Dkt. No. 1 at ¶ 15. Six months earlier, Mr.
Revels had undergone a surgical procedure to remove a
cancerous tumor from his kidney. See id. at ¶ 16. Though
the surgery was successful and his cancer was in remission,
Mr. Revels required a range of medication to support his
kidney function, including diuretics. See id. Additionally, Mr.
Revels suffered from chronic heart disease, diabetes, and
hypertension, and those conditions required other medication.
See id. at ¶ 17. Therefore, Mr. Revels had a complicated
medication regimen that required close supervision. See id.
In jail, that medication regimen was frequently disrupted.
See id. at ¶ 18. Sometimes Mr. Revels received the
wrong medication, other times he received cheaper and less
effective medication, and he often received no medication
at all. See id. As a result, Mr. Revels began experiencing
symptoms including severe bloating, weakness, fatigue,
disorientation, incoherency, extreme weight gain, motor
impairment, episodes of unconsciousness, episodes of
paralysis, and confusion. See id. Defendant Fricke, the
doctor at Schenectady County Jail, and Defendant Farley, a
registered nurse employed at the jail, were well aware of Mr.
Revels's declining health. See id. at ¶ 19.
Shortly after arriving at the jail, Mr. Revels underwent
urinalysis as well as a Blood Urine and Nitrogen Test,
both of which showed kidney problems. See id. During his
ten weeks in Schenectady County Jail, Mr. Revels's kidney
function was repeatedly tested, and the tests consistently
showed dangerously poor kidney function. See id. at ¶
20. Additionally, Mr. Revels showed physical symptoms
—including massive weight gain and bloating—indicative
of kidney failure. See id. Throughout his time in jail, Mr.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 137 of 151

Revels v. Correctional Medical Care, Inc., Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Revels wrote several sick call slips complaining of his various
ailments, and he repeatedly voiced concern about the potential
return of his kidney cancer. See id. at ¶ 21. Despite Mr.
Revels's declining health, Defendant Fricke did not contact
Mr. Revels's specialists or refer him to an outside doctor who
was qualified to address Mr. Revels's condition. See id. at ¶
22. Instead, Defendant Fricke unilaterally decided to withhold
“various medications” from Mr. Revels. See id.
*2 On November 18, 2015, corrections officers discovered
Mr. Revels unconscious on the ground. See id. at ¶ 23. For
several minutes, the medical staff was unable to rouse him.
See id. When Mr. Revels finally regained consciousness, he
was unable to communicate for “a significant period of time.”
See id. The medical staff described the incident as a “paralytic
episode”; it was not the first such episode during Mr. Revels's
time in jail. See id. Despite Mr. Revels's paralytic episode
on November 18, 2015, and despite the many other signs
and symptoms of his poor health, he was not hospitalized
or referred to a specialist. See id. at ¶ 24. Two days later,
Mr. Revels was discovered on the floor of his cell—he
was weak, wheezing, and suffering from auditory and visual
hallucinations. See id. Only at that point was Mr. Revels sent
to the hospital, but his condition had already deteriorated past
the point of recovery. See id. He was mostly incoherent and
on life support until his death on November 25, 2015. See id.
At the hospital, Mr. Revels was diagnosed with Hyperkalemia
and Respiratory Acidosis. See id. at ¶ 25. Hyperkalemia
involves excessive potassium levels in the blood and can
be caused by failure to appropriately monitor blood thinner
and hypotension medications. See id. Mr. Revels eventually
died from a Myocardial Infarction, which can be caused by
Hyperkalemia and Respiratory Acidosis. See id. According to
Plaintiff, Mr. Revels's death could have been prevented if he
had received the appropriate medication, been monitored by
a specialist, or been sent to the hospital. See id.
B. CMC and CBH
CMC is a corporation that provides medical care at numerous
county jails, and Defendant Umar is the president of CMC.
See id. at ¶¶ 6, 8, 27. CMC has “engaged in a well-documented
pattern and practice of providing inadequate and unqualified
medical providers at the various facilities they manage, as
well as inadequate medical and mental health care in general.”
See id. at ¶ 27. The complaint includes pages of troubling
allegations regarding CMC's business practices and its track
record of providing inadequate care in county jails throughout
New York State. See id. at ¶¶ 26-42. But based on the
allegations in the complaint, it is not clear what role, if any,
CMC had at Schenectady County Jail during the time in
question.
Plaintiff alleges that CBH is responsible for providing
medical at the Schenectady County Jail. See id. at ¶ 7. 3
Plaintiff also alleges that, “upon information and belief,
CBH Medical, P.C. is owned by Correctional Medical Care,
Inc.” See id. But the complaint includes no other allegations
regarding CMC's relationship to CBH or CMC's role at the
Schenectady County Jail. Additionally, the complaint does
not contain any allegations relating to CBH or its policies,
practices, or history of providing medical care.
C. Procedural History
On January 26, 2017, Plaintiff Crystal Revels filed the
complaint in this action. Plaintiff alleges three different
causes of action: (1) deliberate indifference to a serious
medical need in violation of the Fourteenth Amendment
as to all Defendants except D'Agostino and Barrett; (2)
implementation of municipal policies that violated Mr.
Revels's constitutional rights as to Defendants CMC, CBH,
Umar, Fricke, Schenectady County, D'Agostino, and Barrett;
and (3) conscious pain and suffering and wrongful death
under New York law as to all Defendants. See id. at ¶¶ 47-63.
Defendants filed three separate motions to dismiss. The
County Defendants filed one motion to dismiss. See Dkt.
No. 27. Defendant Russell Fricke filed a separate motion
to dismiss. See Dkt. No. 28. Finally, the CMC Defendants
move to dismiss and move to strike certain allegations in the
complaint. See Dkt. No. 30.
III. LEGAL STANDARD
*3 A motion to dismiss for failure to state a claim pursuant
to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the party's claim for relief. See Patane v. Clark,
508 F.3d 106, 111-12 (2d Cir. 2007). 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,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted).
Although a court's review of a motion to dismiss is generally
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 138 of 151

Revels v. Correctional Medical Care, Inc., Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
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)); see also
Sutton ex rel. Rose v. Wachovia Secs., LLC, 208 Fed. Appx.
27, 29-30 (2d Cir. 2006) (noting that, on a motion to dismiss,
a court may take judicial notice of documents filed in another
court).
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)(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, 127 S.Ct. 1955, 167 L.Ed.2d
929 (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, 127
S.Ct. 1955 (citation omitted), and present claims that are
“plausible on [their] face,” id. at 570, 127 S.Ct. 1955. “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, 129 S.Ct. 1937
(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, 127
S.Ct. 1955). Ultimately, “when the allegations in a complaint,
however true, could not raise a claim of entitlement to relief,”
Twombly, 550 U.S. at 558, 127 S.Ct. 1955, or where a plaintiff
has “not nudged [its] claims across the line from conceivable
to plausible, the[ ] complaint must be dismissed,” id. at 570,
127 S.Ct. 1955.
IV. DISCUSSION
A. Deliberate Indifference
As a pretrial detainee at the time of the incidents addressed
in the complaint, Plaintiff's claims are governed by the Due
Process Clause of the Fourteenth Amendment, rather than
the Cruel and Unusual Punishments Clause of the Eight
Amendment. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir.
2017). The Supreme Court recently distinguished between
Eighth and Fourteenth Amendment excessive force claims,
holding that a pretrial detainee need not demonstrate that
an officer accused of using excessive force was subjectively
aware that his use of force was unreasonable. See Kingsley v.
Hendrickson, ––– U.S. ––––, 135 S.Ct. 2466, 2470-71, 192
L.Ed.2d 416 (2015).
In Darnell, the Second Circuit extended the Kingsley standard
to a pretrial detainee's allegations related to unconstitutional
conditions of confinement. See Darnell, 849 F.3d at 35.
The court reasoned, “[u]nlike a violation of the Cruel and
Unusual Punishments Clause [of the Eighth Amendment], an
official can violate the Due Process Clause of the Fourteenth
Amendment without meting out any punishment, which
means that the Due Process Clause can be violated when an
official does not have subjective awareness that the official's
acts (or omissions) have subjected the pretrial detainee to a
substantial risk of harm.” Id.
Although Darnell involved a challenge to conditions of
confinement, district courts in this circuit have held that
Kingsley should also be applied to pretrial detainees' claims
of deliberate indifference to serious medical needs. See
Villafane v. Sposato, No. 16-CV-3674, 2017 WL 4179855,
*19 (E.D.N.Y. Aug. 22, 2017) (“District Courts in this
circuit have applied Kingsley to claims for deliberate
indifference to medical needs”); Lloyd v. City of New York,
246 F.Supp.3d 704, 718 (S.D.N.Y. March 31, 2017) (“The
reasoning of Darnell applies equally to claims of deliberate
indifference to serious medical needs under the Fourteenth
Amendment”); see also Torrez v. Semple, No. 17-CV-1211,
2017 WL 3841686, at *3 (D. Conn. Sept. 1, 2017) (“[F]or
a claim of deliberate indifference to mental health needs
or unconstitutional conditions of confinement under the
Fourteenth Amendment, a pretrial detainee can satisfy the
subjective element by showing that the defendants ‘knew, or
should have known, that the condition posed an excessive risk
to health or safety’ ”) (quoting Darnell, 849 F.3d at 35).
*4 Under either the Eighth or the Fourteenth Amendment,
a plaintiff's claim for deliberate indifference to a serious
medical need is analyzed under a two-prong test. Id. at *18.
“First, ‘the alleged deprivation of adequate medical care
must be “sufficiently serious.” ’ ” Grimmett v. Corizon Med.
Assocs. of N.Y., No. 15-CV-7351, 2017 WL 2274485, *3
(S.D.N.Y. May 24, 2017) (quoting Spavone v. N.Y. State Dep't
of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)). “Second,
the defendant must have acted with deliberate indifference, or
a ‘sufficiently culpable state of mind.’ ” Id. (quoting Chance
v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).
1. Objective Prong 4
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 139 of 151

Revels v. Correctional Medical Care, Inc., Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
The objective prong requires “that the alleged deprivation
of medical treatment is, in objective terms, ‘sufficiently
serious'—that is, the prisoner must prove that his medical
need was ‘a condition of urgency, one that may produce
death, degeneration, or extreme pain.’ ” Johnson v. Wright,
412 F.3d 398, 403 (2d Cir. 2005) (quoting Hemmings v.
Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998)). To determine
whether inadequate care is “sufficiently serious,” a court must
“examine how the offending conduct is inadequate and what
harm, if any, the inadequacy has caused or will likely cause
the prisoner.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d
Cir. 2006). Where a plaintiff alleges that inadequate care
was provided—instead of alleging a failure to provide any
treatment—the inquiry focuses on “the particular risk of harm
faced by a prisoner due to the challenged deprivation of care,
rather than the severity of the prisoner's underlying medical
condition, considered in the abstract.” Smith v. Carpenter,
316 F.3d 178, 186 (2d Cir. 2003); see also Ray v. Zamilus,
No. 13-CV-2201, 2017 WL 4329722, *8 (S.D.N.Y. Sept. 27,
2017) (finding that where a “plaintiff suffered from a delay
in treatment, rather than a complete lack of treatment, the
objective element must be satisfied by harm that resulted from
the delay”).
Here, Defendants argue that Mr. Revels was provided medical
care, and that Plaintiff fails to allege a deprivation of care
that was sufficiently serious. See Dkt. No. 27-1 at 17; Dkt.
No. 30-2 at 7-11. The Court disagrees. A number of district
courts in this circuit have found kidney failure to constitute a
sufficiently serious medical condition to satisfy the objective
component of a deliberate indifference claim. See Padilla
v. Corr. Care Sols., No. 17-CV-1150, 2018 WL 550610, *4
(N.D.N.Y. Jan. 22, 2018) (D'Agostino, J.); Rivera v. Fed.
Bureau of Prisons, No. 08-CV-5590, 2009 WL 585828, *5
(S.D.N.Y. Mar. 5, 2009); Candelaria v. Greifinger, No. 96-
CV-17, 1998 WL 187383, *3 (N.D.N.Y. Apr. 15, 1998).
It is well established that the state “ ‘is not constitutionally
obligated ... to construct a perfect plan for [medical] care that
exceeds what the average reasonable person would expect or
avail [him]self of' outside of prison.” Thompson v. Racette,
No. 11-CV-1372, 2012 WL 12884469, *2 (N.D.N.Y. Aug.
2, 2012) (alterations in original) (quoting Dean v. Coughlin,
804 F.2d 207, 215 (2d Cir. 1986)). A mere disagreement
with a prescribed course of treatment is not sufficient to
establish a violation of the Eighth or Fourteenth Amendment.
See Moolenaar v. Champagne, No. 03-CV-1464, 2006 WL
2795339, *6 (N.D.N.Y. Sept. 26, 2006). But this is not a case
of Plaintiff simply disagreeing with a particular medication
or diagnostic technique. Plaintiff alleges that Mr. Revels was
recovering from kidney cancer, and that he repeatedly tested
positive for kidney problems, showed clear symptoms of
kidney failure and other serious medical conditions, and even
endured multiple “paralytic episodes.” Despite these obvious
signs of deteriorating health, medical staff at the jail allegedly
failed to provide any treatment other than withholding some
or all of Mr. Revels's medications. By the time Mr. Revels
was hospitalized, he was past the point of recovery. Plaintiff
alleges that the lack of treatment caused Mr. Revels's death.
Therefore, Plaintiff alleges a sufficiently serious deprivation
of care.
2. Mental Element Prong
*5 “After Darnell, ‘deliberate indifference' is now ‘defined
objectively,' and the ‘Due Process Clause can be violated
when an official does not have subjective awareness that
the official's acts (or omissions) have subjected the pretrial
detainee to a substantial risk of serious harm.’ ” Lloyd,
246 F.Supp. at 719 (quoting Darnell, 849 F.3d at 35). A
pretrial detainee suing for deliberate indifference under the
Fourteenth Amendment “is required to show only that the
prison official acted with objective recklessness, or that the
defendant ‘knew or should have known’ that ‘an excessive
risk to health or safety’ would result.” Grimmett, 2017 WL
2274485, at *4 (quoting Darnell, 849 F.3d at 35).
3. Defendants Fricke and Farley
It has long been the rule in this circuit that “negligence,
even if it constitutes medical malpractice, does not, without
more, engender a constitutional claim.” Clay v. Kellmurray,
465 Fed. Appx. 46, 47 (2d Cir. 2012) (quoting Chance,
143 F.3d at 703). Even after Darnell, it remains the case
that “something more than negligence is needed to elevate a
claim of medical misconduct to a constitutional tort.” Davis
v. McCready, No. 14-CV-6405, 283 F.Supp.3d 108, ––––,
––––, 2017 WL 4803918, *9 (S.D.N.Y. Oct. 23, 2017); see
also Darnell, 849 F.3d at 36 (“But any § 1983 claim for a
violation of due process requires proof of a mens rea greater
than mere negligence”). But distinguishing between negligent
and reckless medical care is a difficult task, especially at
the motion-to-dismiss stage where courts lack the benefit of
expert opinion. See McCready, 2017 WL 4803918, at *9, 283
F.Supp.3d 108. The distinction between the two “depends on
the degree of risk associated with the practitioner's conduct.”
Id.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 140 of 151

Revels v. Correctional Medical Care, Inc., Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
In Rivera v. Federal Bureau of Prisons, No. 08-CV-5590,
2009 WL 585828 2009 (S.D.N.Y. Mar. 5, 2009), the court
faced allegations very similar to the facts alleged in this case.
While incarcerated, the plaintiff took a series of blood tests
that indicated declining kidney function, but he received no
diagnosis or treatment. See id. at 1. Eventually, the plaintiff
was transferred to a different prison to receive medical
attention for kidney failure and was told that he would
need to begin dialyses within two to three years. See id.
Even under the more demanding subjective test for Eighth
Amendment deliberate indifference claims, the court found
that the plaintiff had sufficiently alleged that the medical staff
at the first prison was deliberately indifferent to his medical
needs. See id. at *4; accord Padilla v. Corr. Care Sols., No.
17-CV-1150, 2018 WL 550610, *4 (N.D.N.Y. Jan. 22, 2018)
(D'Agostino, J.).
In this case, Plaintiff alleges that Mr. Revels's kidney function
was repeatedly tested while he was in Schenectady County
Jail, and that those tests consistently indicated dangerously
poor kidney function. Additionally, Mr. Revels displayed
various, troubling symptoms, including severe bloating,
weakness, fatigue, disorientation, incoherency, extreme
weight gain, motor impairment, episodes of unconsciousness,
episodes of paralysis, and confusion. Plaintiff also alleges that
Defendants Fricke and Farley were aware of Mr. Revels's
declining health because they signed off on his blood tests and
because Mr. Revels submitted numerous written complaints.
Defendants argue that Plaintiff has not plausibly alleged that
Defendants Fricke and Farley knew or should have known of
the excessive risk created by their failure to treat Mr. Revels's
medical conditions. See Dkt. No. 48 at 5. But accepting all
allegations as true and drawing all reasonable inferences in
Plaintiff's favor, the Court cannot find as a matter of law that
Defendants Fricke and Farley were not reckless.
4. John Doe Defendants
*6 Plaintiff also brings a claim of deliberate medical
indifference against three John Doe Defendants, who Plaintiff
identifies only as medical staff at Schenectady County Jail.
See Dkt. No. 1 at ¶ 14. The John Doe Defendants include
the members of the medical staff who found Mr. Revels
unconscious on November 18, 2015. The CMC Defendants
argue that those members of the medical staff were not
deliberately indifferent because they provided “medical
attention ... when Mr. Revels was ‘roused’ after losing
consciousness.” Dkt. No. 30-2 at 10. But the allegation that
the John Doe Defendants merely “roused” Mr. Revels does
not prevent the Court from finding that Plaintiff plausibly
alleges that the John Doe Defendants acted with objective
recklessness. Therefore, the motion to dismiss as to the John
Doe Defendants is denied.
5. Municipal Liability
A municipality “may not be held liable under Section 1983
unless the challenged action was performed pursuant to a
municipal policy or custom.” Powers v. Gipson, No. 04-
CV-6338, 2004 WL 2123490, *2 (W.D.N.Y. Sept. 14, 2004)
(citing Monell v. Dep't of Soc. Serv., 436 U.S. 658, 694,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). This is because
“[m]unicipalities are not subject to Section 1983 liability
solely on the basis of a respondeat superior theory.” Id., at *2.
As a result, to demonstrate Monell liability, a plaintiff must
allege a violation of constitutional rights by employees of the
municipality and “(1) ‘the existence of a municipal policy or
custom ... that caused his injuries beyond merely employing
the misbehaving officer[s]'; and (2) ‘a causal connection—an
“affirmative link”—between the policy and the deprivation of
his constitutional rights.’ ” Harper v. City of New York, 424
Fed. Appx. 36, 38 (2d Cir. 2011) (quoting Vippolis v. Village
of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)).
“Although Monell dealt with municipal employers, its
rationale has been extended to private businesses.” Powell
v. Correc. Med. Care, Inc., No. 13-CV-6842, 2014 WL
4229980, *6 (S.D.N.Y. Aug. 15, 2014) (quoting Rojas v.
Alexander's Dep't Store, Inc., 924 F.2d 406, 409 (2d Cir.
1990)); see also Feder v. Sposato, No. 11-CV-93, 2014 WL
1801137, *6 (E.D.N.Y. May 7, 2014) (“Because Armor was
hired to fulfill the state's constitutional obligation to provide
necessary medical care for its inmates, Armor ... [was] ‘acting
under the color of state law' for purposes of Section 1983”).
“A plaintiff may plead a municipal policy or custom by
alleging: (1) a formal policy, promulgated or adopted by the
entity; or (2) that an official with policymaking authority
took action or made a specific decision which caused the
alleged violation of constitutional rights; or (3) the existence
of an unlawful practice by subordinate officials that was so
permanent or well settled so as to constitute a ‘custom or
usage,' and that the practice was so widespread as to imply
the constructive acquiescence of policymaking officials.”
Shepherd v. Powers, No. 11-CV-6860, 2012 WL 4477241, *9
(S.D.N.Y. Sept. 27, 2012) (internal quotation marks omitted).
Here, Plaintiff alleges that the inadequate care was caused
by a policy or custom of CMC. See Dkt. No. 1 at ¶ 56.
Indeed, the complaint contains pages of allegations regarding
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 141 of 151

Revels v. Correctional Medical Care, Inc., Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 6
CMC's “policy and/or practice of not providing appropriate
medical care.” See id. But Plaintiff does not allege that
CMC was responsible for providing medical care at the
Schenectady County Jail. Instead, she alleges that CBH had
that responsibility; it is not clear what role, if any, CMC
played at the jail. See id. at ¶ 7. Although the complaint
alleges, upon information and belief, that CBH is owned by
CMC, it does not provide any further information regarding
the relationship between the two entities. See id. Even if CMC
does own CBH, that alone is not sufficient to hold CMC
liable for CBH's conduct. See DeJesus v. Sears, Roebuck &
Co., 87 F.3d 65, 69 (2d Cir. 1996) (“As a general matter ... a
corporate relationship alone is not sufficient to bind [a parent
corporation for the actions of its subsidiary]” (alteration in
original)). Additionally, the complaint only mentions CBH
a handful of times, and it does not contain any allegations
that could allow the Court to conclude that CBH itself has a
custom or practice of providing inadequate care. 5
*7 Similarly, Plaintiff's § 1983 allegations against the
County Defendants rest entirely on CMC's alleged custom or
practice of providing inadequate medical care. Since Plaintiff
does not allege that CMC was responsible for providing
medical care at the Schenectady County Jail, CMC's policies
and practices do not provide a sufficient basis for establishing
liability as to the County Defendants. Therefore, the County
Defendants' motion to dismiss Plaintiff's § 1983 claims is
granted.
B. State Law Claims
1. The County Defendants
The County Defendants' move to dismiss Plaintiff's state law
claims against the County, D'Agostino, and Barrett. See Dkt.
No. 27-1 at 7, 12. First, the County Defendants argue that
Defendants D'Agostino and Barrett cannot be held liable for
the acts or omissions of corrections officers, and that there is
no basis for vicarious liability alleged in the complaint. See id.
at 7 (citing Barr v. Albany County, 50 N.Y.2d 247, 257, 428
N.Y.S.2d 665, 406 N.E.2d 481 (1980) ). Second, the County
Defendants argue that state law claims against the County
must be dismissed because it may not be held vicariously
liable for the acts of corrections officers. See id. at 12 (citing
De Ratafia v. County of Columbia, No. 13-CV-174, 2013 WL
5423871, *10 (N.D.N.Y. Sept. 26, 2013) ).
Plaintiff fails to address these arguments in her opposition
to the County Defendants' motion to dismiss. Since Plaintiff
does not assert any other basis for liability under state law
against the County Defendants, Plaintiff's state law claims
against the County Defendants are dismissed. See Robinson v.
Fischer, No. 09-CV-8882, 2010 WL 5376204, *10 (S.D.N.Y.
Dec. 29, 2010) (“Federal courts have the discretion to deem
a claim abandoned when a defendant moves to dismiss that
claim and the plaintiff fails to address in their opposition
papers defendants' arguments for dismissing such a claim”);
see also Div. 1181 Amalgamated Transit Union–N.Y. Emps.
Pension Fund v. R & C Transit, Inc., No. 16-CV-2481, 2018
WL 794572, *4 (E.D.N.Y. Feb. 7, 2018) (collecting cases).
2. The CMC Defendants
The CMC Defendants argue that Plaintiff's state law claims
should be dismissed because Plaintiff did not file a certificate
of merit along with her complaint as required by C.P.L.R.
§ 3012-a. See Dkt. No. 30-2 at 18. The statute “requires
counsel to submit a certificate of merit declaring that he or
she has consulted with at least one licensed physician who
is knowledgeable regarding the relevant issues in the action,
has reviewed the case,” and has concluded that there is a
reasonable basis for commencement of an action. Calcagno
v. Orthopedic Assoc. of Dutchess Cty., PC, 148 A.D.3d 1279,
1280 (3d Dep't 2017). However, “the mere failure to timely
file [a certificate of merit] does not support dismissal of [an]
action,” id., and Plaintiff submitted a certificate of merit on
November 13, 2017, see Dkt. No. 50. Therefore, the CMC
Defendants' motion to dismiss Plaintiff's state law claims is
denied.
V. CONCLUSION
After carefully reviewing the entire record in this matter, the
parties' submissions and the applicable law, and for the above-
stated reasons, the Court hereby
ORDERS that the County Defendants' motion to dismiss
(Dkt. No. 27) is GRANTED and Defendants Schenectady
County, Dominic D'Agostino, and Jim Barrett may be
terminated; and the Court further
ORDERS that Defendant Fricke's motion to dismiss (Dkt.
No. 28) is DENIED; and it the Court further
ORDERS that the CMC Defendants' motion to dismiss
(Dkt. No. 30) is GRANTED in part as to the
deliberate indifference and municipal liability claims against
Correctional Medical Care, Inc., CBH Medical, P.C., and
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 142 of 151

Revels v. Correctional Medical Care, Inc., Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 7
Emre Umar, and the motion is DENIED in part as to
Plaintiff's state law claims and the deliberate indifference
claims against Defendants Deiah Farley, and John Does 1-3;
and the Court further
*8 ORDERS that the CMC Defendants' motion to strike
(Dkt. No. 30) is DENIED as moot; and the Court further
ORDERS that the Clerk of the Court serve a copy of
this Memorandum-Decision and Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 1578157
Footnotes
1 John Does 1-3 are unidentified medical staff at the Schenectady County Jail who were responsible for
providing medical treatment to Mr. Revels. See Dkt. No. 1 at ¶ 14.
2 The following facts are based on the allegations in Plaintiff's complaint. See Dkt. No. 1.
3 Plaintiffs actually allege that CBH “is responsible for providing medical care at the Monroe Correctional
Facility.” See Dkt. No. 1 at ¶ 7. But based on representations made in the parties' briefs, the Court presumes
that this was an error, and that Plaintiff's counsel intended to allege that CBH is responsible for providing
medical care at the Schenectady County Jail. See Dkt. No. 30-2 at 14; Dkt. No. 40 at 9.
4 The standard for establishing the objective prong of a deliberate indifference claim was not affected by
Darnell. See Feliciano, 2017 WL 1189747, *10. Therefore, “the objective prong of a deliberate-indifference
claim is the same regardless of whether the inmate is a convicted prisoner or a pretrial detainee.” Id. The
Court notes, however, that the term “objective prong” is somewhat misleading in the context of a Fourteenth
Amendment deliberate indifference claim. As the Court explains below, after Darnell, both prongs of such a
claim are now analyzed under an objective standard.
5 The CMC Defendants move to strike large chunks of Plaintiff's complaint that are related to the allegations of
municipal liability against CMC. See Dkt. No. 30-2 at 19-24. Since the Court dismisses the municipal liability
claims against CMC and CBH, the motion to strike is denied as moot.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 143 of 151

Rodriguez v. Westchester County, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 4390222
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Kevin RODRIGUEZ, Plaintiff,
v.
WESTCHESTER COUNTY and
Officer Bravado, Defendants.
23-cv-5265 (NSR)
|
Signed October 3, 2024
Attorneys and Law Firms
Kevin Rodriguez, Yonkers, NY, Pro Se.
Taryn Anita Chapman, Irma Wheatfield Cosgriff,
Westchester County Attorney's Office, White Plains, NY, for
Defendants.
OPINION & ORDER
NELSON S. ROMÁN, United States District Judge:
*1 Plaintiff Kevin Rodriguez (“Rodriguez or “Plaintiff”)
initiated this action on June 20, 2023 (ECF No. 1), alleging
deprivation of rights under 42 U.S.C. § 1983, claiming Eighth
Amendment violations for excessive force and for deliberate
indifference to medical needs, against Defendant Westchester
County (“Westchester”) and Defendant Correction Officer
Bravado (together, “Defendants”).
Presently before the Court is Defendants' Motion to Dismiss
Plaintiff's claims pursuant to Federal Rules of Civil Procedure
12(b)(6). For the following reasons, Defendants' Motion to
Dismiss is GRANTED.
BACKGROUND
The following facts are derived from the Complaint and are
taken as true and constructed in the light most favorable to the
Plaintiff at this stage.
Plaintiff Kevin Rodriguez is a former prisoner. (Compl. p.
9.) Plaintiff alleges that during his incarceration on April 4,
2022 he was attacked by another prisoner and inappropriately
restrained by a corrections officer. (Id.) Specifically, as
Plaintiff was attempting to defend himself, Officer Bravado
allegedly grabbed Plaintiff from behind, pulling Plaintiff's
arm and swinging him in a circle, causing Plaintiff to fail
and to suffer injury to his rotator cuff and lower back. (Id.)
Plaintiff states that as a result of this, the attacking prisoner
was able to assault Plaintiff further. (Id.) Plaintiff made
several requests for medical attention but was initially denied
an MRI of his lower back and denied a CT scan to his head.
(Id.) Plaintiff was eventually approved for an MRI of his
shoulder but did not receive approval for an MRI of his back.
(Id.) Likewise, Plaintiff did not receive approval for a CT scan
of his head. (Id.) When Plaintiff was approved for an MRI
of his shoulder, he was transported to Garnet Medical Center
instead of the Westchester Medical Center. (Id.) The MRI was
only approved shortly before Plaintiff's scheduled release.
(Id.) Plaintiff asserts that because of Officer Bravado's actions
at the time of the attack and the medical facility's “neglect”
and “inappropriate handling” of Plaintiff's injuries, Plaintiff
has severe continual pain and continual injury to his back,
shoulder, as well as severe migraine headaches. (Id.) Plaintiff
therefore seeks compensation for his injuries and raises §
1983 claims alleging deprivation of rights in violation of the
Eighth Amendment.
PROCEDURAL HISTORY
On June 20, 2023, Plaintiff commenced this action against
Defendants in his complaint (the “Complaint”, ECF No. 1).
Defendants filed a motion to dismiss and its memorandum of
law in support (the “Motion” or “Mot.”, ECF No. 24). Plaintiff
filed an opposition to the Motion (“the Opposition” or “Opp.”,
ECF No. 25). The Defendants filed a reply affirmation in
further support of the Motion (the “Reply”, ECF No. 26).
LEGAL STANDARD
A. Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), dismissal
is proper unless the complaint “contain[s] 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)). When there are well-pled factual
allegations in the complaint, “a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Id. at 679. While the Court
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 144 of 151

Rodriguez v. Westchester County, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
must take all material factual allegations as true and draw
reasonable inferences in the non-moving party's favor, the
Court is “not bound to accept as true a legal conclusion
couched as a factual allegation,” or to credit “mere conclusory
statements” or “[t]hreadbare recitals of the elements of a cause
of action.” Id. at 678 (quoting Twombly, 550 U.S. at 555). The
Second Circuit “deem[s] a complaint to include any written
instrument attached to it as an exhibit or any statements or
documents incorporated in it by reference ... and documents
that plaintiffs either possessed or knew about and upon which
they relied in bringing the suit.” Rotham v. Gregor, 220
F.3d 81, 88 (2d Cir. 2000) (internal citations omitted). The
critical inquiry is whether the Plaintiff has pled sufficient
facts to nudge the claims “across the line from conceivable
to plausible.” Twombly, 550 U.S. at 570. A motion to dismiss
will be denied where the allegations “allow[ ] the court to
draw the reasonable inference that the Defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678.
DISCUSSION
*2 Plaintiff brings claims pursuant to § 1983, alleging
Eighth Amendment violations. Plaintiff's § 1983 claims must
be dismissed.
A. Municipal Liability
In order to “establish the liability of a municipality under §
1983 for unconstitutional acts by its employees, a plaintiff
must show that the violation of his constitutional rights
resulted from a municipal custom or policy.” Powell v.
Gardner, 891 F.2d 1039, 1045 (2d Cir. 1989). A “properly
pled Monell claim establishes a ‘direct causal link between
a municipal policy or custom and the alleged constitutional
deprivation.” Barrett v. City of Newburgh, 720 F. App'x 29,
31 (2d Cir. 2017) (quoting City of Canton v. Harris, 489 U.S.
378, 385 (1989)).
Simply put, the Complaint contains no such allegations
regarding any purported municipal custom or policy. Instead,
the Complaint focuses on the April 4, 2022 attack and then
the medical treatment Plaintiff did/did not receive. These two
isolated occurrences do not rise to a municipal custom or
policy and Plaintiff makes no claims to that end. Escobar v.
City of New York, 766 F. Supp. 2d 415, 421 (E.D.N.Y. 2011)
(noting that “Monell, to be sure, requires more than isolated
incidents to subject the City to liability”). Thus, Plaintiff has
not established municipal liability and cannot carry forward
his § 1983 claim against Westchester. This claim is therefore
dismissed without prejudice.
B. Eighth Amendment Deliberate Indifference Claim
In order to state an Eighth Amendment violation claim on
account of deliberate indifference, a plaintiff must allege
acts or omissions demonstrating deliberate indifference to a
substantial risk of harm. Veloz v. New York, 339 F. Supp.
2d 505, 521 (S.D.N.Y. 2004), aff'd, 178 F. App'x 39 (2d
Cir. 2006). This can be evidenced by a plaintiff alleging
that officials purposefully denied or delayed treatment or
interfered with treatment once prescribed. Id.
The closest Plaintiff gets to this standard is when he alleges
that he did not receive an MRI immediately after the
attack wherein Plaintiff was injured. (Compl. p. 9.) Plaintiff
complains that the MRI “was not scheduled immediately
after the injuries were sustained” but rather that “[i]t was
only approved right before [his] release was scheduled.” (Id.)
Ultimately, this is not enough; Plaintiff does not offer
allegations that Westchester delayed the MRI – it was
simply not scheduled as soon as Plaintiff had hoped. This is
insufficient to state a deliberate indifference claim under the
Eighth Amendment.
Furthermore, Plaintiff's own complaint indicates that he
received treatment – the issue was that Plaintiff just disagreed
as to the treatment received and the location where treatment
was administered. (Compl. p. 9.) This does not constitute
deliberate indifference and/or negligent medical treatment;
“[w]hile prisoners have a right to medical treatment, they
do not have a right to choose a specific type of treatment.”
Veloz v. New York, 339 F. Supp. 2d 505, 525 (S.D.N.Y. 2004),
aff'd, 178 F. App'x 39 (2d Cir. 2006) (noting that “the Eighth
Amendment is not implicated by prisoners' complaints over
the adequacy of care they received when those claims amount
to a disagreement over the appropriateness of a particular
prescription plan”). See also Grant v. Burroughs, No. 96
CIV. 2753 (MGC), 2000 WL 1277592, at *5 (S.D.N.Y. Sept.
8, 2000) (prisoner denied pain medication does not have
a constitutional right to treatment of his choice); Sonds v.
St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d
303, 311-312 (S.D.N.Y. 2001) (noting that “[a] difference
of opinion between a prisoner and prison officials regarding
medical treatment does not, as a matter of law, constitute
deliberate indifference” and that “disagreements between a
prisoner and prison officials over treatment decisions fall
short of” rising to an Eighth Amendment violation”).
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 145 of 151

Rodriguez v. Westchester County, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
*3 Plaintiff complains that he did not receive an MRI of
his lower back and did not receive a CT scan of his head.
(Compl. p. 9.) These decisions do not survive the threshold
for a deliberate indifference claim. Indeed, Courts have long
recognized that “disagreements over medications, diagnostic
techniques (e.g., the need for X-rays) ... are not adequate
grounds for a Section 1983 claim. These issues implicate
medical judgments and, at worst, negligence amounting
to medical malpractice, but not the Eighth Amendment.”
Sonds, 151 F. Supp. 2d 303, 312. Thus, Plaintiff not
receiving the exact treatment he requested is immaterial to the
Court's Eighth Amendment violation analysis. Accordingly,
Plaintiff's Eighth Amendment deliberate indifference claim
must fail and is dismissed without prejudice.
C. Eighth Amendment Excessive Force Claim
To plead an Eighth Amendment excessive force claim, a
party must allege that (1) “the conduct was objectively
harmful enough or sufficiently serious to reach constitutional
dimensions,” and (2) “the defendant acted with a subjectively
sufficiently culpable state of mind ... characterized by
wantonness in light of the particular circumstances
surrounding the challenged conduct.” Harris v. Miller, 818
F.3d 49 (2d Cir. 2016). The test for wantonness “is whether
the force was used in good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Id.
at 63 (quoting Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.
2003)).
Plaintiff has failed to allege that a culpable state of mind
undergirded Officer Bravado's use of force. (Compl. p.
9.) Rather, Officer Bravado's use of force appears to be
proportionate to the circumstances – a violent assault by one
prisoner against Plaintiff – and motivated by the need to
restore order and discipline. (Id.) Indeed, as Officer Bravado
was attempting to intervene, the prisoner continued to attack
Plaintiff, further underscoring the severity of the situation
and the necessity of the use of force. (Id.) Plaintiff alleges
that Officer Bravado grabbed him from behind and “pull[ed]
[his] arm and sw[ung] [him] in a circle, which caused him
to fall.” (Id.) Without more, this does not arise to the level
of malicious or sadistic harm as needed to state an excessive
force claim. See Harris, 818 F.3d 48. Accordingly, Plaintiff's
excessive force claim is dismissed without prejudice.
CONCLUSION
For the foregoing reasons, the Court GRANTS the
Defendants' motion to dismiss Plaintiff's § 1983 claims
without prejudice. Plaintiff is granted leave to file an
Amended Complaint by November 7, 2024. Plaintiff is
advised that the Amended Complaint will replace, not
supplement, the Complaint, and so any claims that he wishes
to pursue must be included in, or attached to, the Amended
Complaint. Should Plaintiff file an Amended Complaint, the
Defendants are directed to answer or otherwise respond by
November 28, 2024. If Plaintiff fails to file an Amended
Complaint within the time allowed, those claims that were
dismissed without prejudice shall be deemed dismissed with
prejudice.
Attachment
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 146 of 151

Rodriguez v. Westchester County, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 147 of 151

Rodriguez v. Westchester County, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
All Citations
Not Reported in Fed. Supp., 2024 WL 4390222
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 148 of 151

Young v. Carter, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 2430408
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jason YOUNG, Plaintiff,
v.
Warden CARTER, et al., Defendants.
1:21-cv-8973 (MKV)
|
Signed March 9, 2023
Attorneys and Law Firms
Jason Young, Bronx, NY, Pro Se.
Ian William Forster, Wynee Ngo, New York City Law
Department, General Litigation, New York, NY, Philip
Sebastian Frank, New York City Law Department, New York,
NY, for Defendants Warden Carter, Captain Guerra, Captain
Horton.
OPINION AND ORDER
GRANTING MOTION TO DISMISS
MARY KAY VYSKOCIL, United States District Judge.
*1 Plaintiff Jason Young alleges in this pro se action that
several correction officers violated his federal constitutional
rights while he was incarcerated by the New York City
Department of Correction (“NYCDOC”) on Rikers Island.
Specifically, Plaintiff alleges that he was deprived of toilet
paper, soap, and a toothbrush for between two and three
days and that, after complaining, he was pepper sprayed
and deprived of food and water for seven to eight hours.
The defendants now move to dismiss the action pursuant to
Federal Rule of Civil Procedure 12(b)(6) on the grounds that
Plaintiff failed to exhaust his administrative remedies and
that, in any event, Plaintiff fails to plead facts plausibly giving
rise to a constitutional violation. For the reasons that follow,
the motion to dismiss is granted.
FACTUL BACKGROUND 1
Young and several other pre-trial detainees were incarcerated
in the same housing unit on Rikers Island. AC at 4. As
of October 5, 2021, Young and other detainees had been
left without toilet paper, soap, or toothbrushes for two or
three days. 2 AC at 4. After complaining about the lack of
toiletries, Young and the other detainees were pepper sprayed
and denied access to food, water, and a working toilet for
seven or eight hours. AC at 5, 8. Young alleges that he suffered
physical and psychological harm as a result of this treatment.
AC at 5.
PROCEDURAL HISTORY
Young filed his complaint in this matter on October 12,
2021, 3 as part of a pro se group of 25 plaintiffs, [ECF No.
3] (“Compl.”), alleging that the defendants, who are four
officials at Rikers Island, 4 violated his Eighth and Fourteenth
Amendment rights. Upon filing, Chief Judge Swain severed
Young's claims and those of the other plaintiffs into individual
cases, and each case was given its own docket number and
randomly assigned to an individual judge. [ECF No. 1].
Young thereafter filed an Amended Complaint, which was
substantially the same as the original complaint, though it
added the allegation regarding the use of pepper spray. [ECF
No. 14] (“AC”).
*2 Defendants have moved to dismiss the Amended
Complaint. [ECF Nos. 31-32]. In support of the motion,
Defendants argued that Young's claim is barred because of
his failure to exhaust administrative remedies and that, in any
event, Young failed to plausibly plead constitutional injury.
After waiting several months without any opposition, 5 the
Court directed Young to file his opposition or file a letter
indicating that no opposition would be filed. [ECF No. 36]. In
response, Young filed a three-sentence letter which, in effect,
stated only that Young opposed the motion to dismiss. [ECF
No. 37].
LEGAL STANDARDS
To survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’
” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible on its face “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).
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 149 of 151

Young v. Carter, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Courts must “afford a pro se litigant special solicitude by
interpreting a complaint filed pro se to raise the strongest
claims that it suggests.” Hardaway v. Hartford Pub. Works
Dep't, 879 F.3d 486, 489 (2d Cir. 2018) (internal quotation
marks omitted). However, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678.
DISCUSSION
The Prison Litigation Reform Act (“PLRA”) requires that
inmates exhaust available prison grievance procedures before
initiating a lawsuit regarding prison conditions. See 42 U.S.C.
§ 1997e(a); Jones v. Bock, 549 U.S. 199, 204 (1997). The
“exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532
(2002). Exhaustion under the PLRA is mandatory, even when
the prisoner seeks relief such as money damages, that is not
available through administrative proceedings. See id. at 524.
“Failure to exhaust administrative remedies is an affirmative
defense under the PLRA, not a pleading requirement.”
Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir.
2016). As a result, “inmates are not required to specially
plead or demonstrate exhaustion in their complaints.” Jones,
549 U.S. at 216. However, a district court “may dismiss a
complaint for failure to exhaust administrative remedies if
it is clear on the face of the complaint that the plaintiff did
not satisfy the PLRA exhaustion requirement.” Williams, 829
F.3d at 122.
Here, it is apparent from the face of the complaint that
Young did not exhaust the available administrative remedies
before initiating this action. Grievance procedures at Rikers
Island are governed by the Inmate Grievance and Request
Program (“IGRP”). See Hickman v. City of New York, No.
20-cv-4699, 2021 WL 3604786, at *3 (S.D.N.Y. Aug. 12,
2021). The IGRP requires numerous steps, assuming the
inmate disagrees with the resolution at each stage. These
steps include: (1) submission of a complaint to the Office
of Constituent and Grievance Services; (2) an appeal to
the facility's Commanding officer; (3) an appeal to the
facility's Division Chief; and (4) an appeal to the Central
Office Review Committee. See N.Y. City Dep't of Correction,
Directive 3376R-A (effective Dec. 10, 2018) at §§ V-
IX, https://www1.nyc.gov/assets/doc/downloads/directives/
Directive_3376R-A.pdf (last visited March 8, 2023). 6
*3 Each of these steps can take between five and seven
days, such that the entire “grievance process may take several
weeks to complete.” Bush v. City of New York, No. 19-
cv-5319, 2021 WL 1198321, at *2 (S.D.N.Y. Marc. 30,
2021). Nevertheless, “to satisfy the exhaustion requirement,
an inmate must use all available administrative mechanisms,
including appeals, through the highest level for each claim.”
Ford v. Aramak, No. 18-cv-2696, 2020 WL 377882, at *4
(S.D.N.Y. Jan. 23, 2020).
Young alleges that the incident giving rise to the complaint
occurred on October 5, 2021, and he initiated this action
only seven days later, on October 12, 2021. This is too small
a window for it to be possible that Young complied with
the IGRP and exhausted his administrative remedies before
suing. As Judge Koeltl explained in one of the severed cases,
“[g]iven the number of administrative steps in the IGRP and
the amount of time allocated for each step, it is virtually
impossible that the plaintiff could have completed these
steps and received a final decision, thereby exhausting the
IGRP procedures, before initiating this action.” Kingsberry
v. Carter, No. 21-cv-9076, 2022 WL 10142889, at *2
(S.D.N.Y. Oct. 17, 2022). This reasoning, which the Court
finds persuasive, is in accord with every decision to date
that has addressed the issue of non-exhaustion in the actions
severed from this case. 7
“There is no question that exhaustion is mandatory under
the PLRA and that unexhausted claims cannot be brought in
court.” Jones, 549 U.S. at 211. Because it is clear from the face
of the plaintiff's complaint that Young has failed to exhaust
his available administrative remedies, the motion to dismiss
is granted. The Court need not reach Defendants' alternative
argument on the merits.
CONCLUSION
For the foregoing reasons, the plaintiff's amended complaint
is dismissed without prejudice. The Clerk of Court
respectfully is requested to close this case and all pending
motions. The Clerk of the Court also is requested to mail a
copy of this Order to the pro se plaintiff at the address of
record and to note service on the docket of the Court.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 150 of 151

Young v. Carter, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
SO ORDERED. All Citations
Not Reported in Fed. Supp., 2023 WL 2430408
Footnotes
1 The facts set forth in this section are based on the Court's liberal interpretation of Plaintiff's Amended
Complaint [ECF No. 14] (“AC”). The Court assumes any well-pleaded factual allegations in Plaintiff's
Amended Complaint to be true for purposes of this motion. See Kassner v. 2nd Ave. Delicatessen Inc., 496
F.3d 229, 237 (2d Cir. 2007).
2 Since Plaintiff's Amended Complaint does not contain paragraph numbers, the Court's citations refer to page
numbers in the Amended Complaint.
3 Young signed his initial complaint on October 6, 2021, and it was delivered to prison officials for mailing on
October 12, 2021. Compl. at 7. “Under the prison mailbox rule, a submission from an incarcerated pro se
litigant is generally deemed to have been filed when it is given to prison officials.” Smith v. City of New York,
No. 12-cv-8131, 2014 WL 2575778, at *1 (S.D.N.Y. June 9, 2014).
4 Defendants are: NYC/DOC/VCBC Warden Carter; NYC/DOC/VCBC Housing Unit 3-AA Captain Guerra;
NYC/DOC/VCBC Facility Storehouse Captain Horton; and “Captain John Doe.” Compl. at 1. On December 6,
2021, the Court directed the New York City Law Department to ascertain and provide to Young the identity and
badge number of “Captain John Doe” and directed Young to file “an amended complaint naming the newly
identified individual as a defendant” within 30 days of receiving that information. ECF No. 7. On February 3,
2021, Defendants filed a letter identifying by name and badge number the three captains who supervised
VCBC's intake procedures on October 5, 2021. [ECF No. 10]. Young amended his complaint but did name
any of the three captains identified.
5 Before Defendants filed their motion to dismiss, Young filed two short letters seemingly in response to the pre-
motion letter filed by Defendants, in which Young briefly stated his opposition to the Defendants' contemplated
motion. [ECF Nos. 22, 26]. While the Court considers Young's letters in addressing the pending motion,
neither letter provides any information or arguments that are particularly pertinent to the outcome.
6 Because the IGRP is a matter of public record, “[i]t is common practice in this District to take judicial notice
of the version of the IGRP in effect at the time of the events giving rise to a prisoner's claim.” Sanders v. City
of New York, No. 16-cv-7426, 2018 WL 3117508, at *4 n.1 (S.D.N.Y. June 25, 2018).
7 See, e.g., Corchado v. Carter, No. 21-cv-8984, 2022 WL 4096165 (S.D.N.Y. Sept. 7, 2022); Thompson v.
Carter, No. 21-cv-8982, 2022 WL 2533112 (S.D.N.Y. July 7, 2022); McCray v. Carter, No. 21-cv-9051, 2022
WL 6854524 (S.D.N.Y. Oct. 12, 2022), R&R adopted, No. 21-cv-9051, 2022 WL 16541173 (S.D.N.Y. Oct.
27, 2022); Lee v. Carter, No. 21-cv-8629, 2022 WL 3441654, at *7 (S.D.N.Y. July 28, 2022).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-01173-GTS-ML Document 41 Filed 05/14/26 Page 151 of 151