Coleman v. Tomprowski et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WINDSOR COLEMAN,
Plaintiff,
v.
WOLCOTT; TOMPROWSKI, JOHN
DOE/MR.H.; ANNUCCI; and
MARTUSCELLO,1
Defendants.
24-CV-6182-MAV
ORDER
I. 	INTRODUCTION
Pro se plaintiff, Windsor Coleman, a prisoner at Midstate Correctional Facility
("Midstate"), filed an action in the Northern District of New York, Santos et al. v.
Parmitel et al., 9:23-CV-401-GTS-TWD ("Northern District Action") seeking relief
under 42 U.S.C. § 1983. ECF No. 1. He also filed an application to proceed in forma
pauperis, which was granted. ECF Nos. 7, 10. After Coleman filed an amended
complaint, 	see 	ECF 	No. 	14, 	the 	Northern 	District 	Court 	severed 	defendants
Tomprowski, Wolcott, and John Doe/Mr. H, as well as all claims against them, and
transferred these defendants and claims to this Court. ECF No. 36. Upon receipt of
the transfer, the Clerk's Office opened this case ("24-CV-6182"). ECF No. 37.
1 The caption is reproduced as it appears in the Court's electronic case management system
("CM/ECF").
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On June 7, 2024, Coleman filed a second amended complaint in the Northern
District action. 6:24-CV-6388-FPG, ECF No. 43. Shortly thereafter, the Northern
District severed defendants Annucci and Martuscello and all claims against them and
transferred them to this Court. ECF No. 45. Upon receipt of the transfer, the Clerk's
Office opened case number 6:24-CV-6388-FPG ("24-CV-6388"). Id. at ECF No. 46.
The Court consolidated cases 24-CV-06388 (now closed) and 24-CV-6182 (lead
case). ECF No. 61. The second amended complaint in 24-CV-6388 was docketed as
the second supplement to the amended complaint in this action. ECF No. 	14-3.
Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the court now screens the
amended 	complaint, 	ECF 	No. 	14, 	as 	supplemented, 	ECF 	Nos. 	14-2 	and 	14-3,
(collectively, the "amended complaint").
The severed claims transferred to this District allege violations of Coleman's
rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments arising
from events which occurred at Attica Correctional Facility ("Attica"), Lakeview Shock
Incarceration Correctional Facility ("Lakeview"), and Wende Correctional Facility
("Wende").
For the reasons that follow, 	Coleman's Eighth Amendment claims against
Tomprowski and Annucci arising from his SHU confinement may proceed to service.
His remaining claims are dismissed for failure to state a claim pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l) with leave to amend.
2
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IL 	BACKGROUND
Coleman sues former commissioner of the New York State Department of
Corrections 	and 	Community 	Supervision 	("DOCCS"); 	former 	Commissioner 	of
DOCCS, 	Anthony Annucci 	("Annucci"); 	Superintendent of Attica, 	Julie 	Wolcott
("Wolcott"); current Commissioner ofDOCCS, Daniel Martuscello III, ("Martuscello");
Attica Sergeant Tomprowski, ("Tomprowski"), and John Doe/Mr.H. (' Mr. H"), all for
constitutional violations arising from events at Attica, Wende, and Lakeview. 2 The
amended complaint alleges a litany of events occurring between August 10, 2022 and
April 14, 2024. The exact dates of Coleman's incarceration at these three facilities,
particularly after his initial period of incarceration at Attica are not well-defined.
What is clear is that Coleman was incarcerated at Attica from August 10 through
September 21, 2022; at Midstate from September 21, 2022 through December 14,
2023; at Lakeview beginning on December 15, 2023; at Wende beginning on or about
February 26, 2024; and at Attica from March 5, 2024, through an unspecified date.
ECF No. 14-3 at ,r,r 6-7, 13-15.
Attica: August 10 through September 21, 2022.
On August 10, 2022, 	Coleman was transferred from Auburn Correctional
Facility ("Auburn") to Attica. ECF No. 14, ,r 3. On August 11, 2022, Coleman was
served with a misbehavior report carried over from Auburn, causing him to be placed
2 At points in the amended complaint, it is difficult to identify which conduct arose in this District.
Where possible, the Court has used attached grievances to assist in making that determination. If,
however, the Court has misconstrued the locale of any of the alleged incidents, Coleman may remedy
that in the second amended complaint.
3
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in Special Housing Unit ("SHU") confinement with a cell shield "that contained feces,
urine, [and] dirt stains." Id. at ,r,r 4-5; ECF No. 14-3 at ,r 3. 3 On August 11, 2022,
Coleman complained to Tomprowski and requested a change of clothes and removal
of the cell shield, as Coleman "did not receive a cell shield order." ECF No. 14 at ,r 5.
At the same time, he was also served with a misbehavior report from Auburn that
resulted 	in 	a 	sentence 	of forty-seven 	months 	and 	twenty-nine 	days 	of SHU
confinement 	following 	a 	hearing 	conducted 	by 	Stackowski, 	Attica's 	Deputy
Superintendent of Security. Id. at ,r 6; ECF No. 14-3 at ,r,r 4-5.
In his grievance dated August 21, 2022, Coleman complained that he had been
without a change of clothes or a bucket for hot water for eleven days and was being
held without a cell shield renewal order. ECF No. 14. at p. 19-20. 4 Although Coleman
also alleges that he was without a pillow for eleven days, this is not mentioned in any
grievance. Id. 	at ,r 	11. 	Coleman's cell shield order was renewed by Wolcott at
Tomprowski's recommendation from August 19, 2022, through August 26, 2022, and
again thereafter through September 2, 2022. Id. at ,r 10, 16. The grievance disposition
3 A cell shield is a transparent covering for the front of a prison cell, "equipped to provide adequate
ventilation." N.Y. Comp. Codes R. & Regs. Tit 7 § 305.6(a). They may be ordered by corrections staff
"for good cause, including but not limited to ... throwing ... objects through the cell door." Id. at
§ 305.6(b)(l).
4 In evaluating the sufficiency of Coleman's allegations, the Court has considered the exhibits attached
to the amended complaint that are referenced therein. See Cartee Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 4 7 (2d Cir. 1991)) ("[T]he complaint is deemed to include any written instrument attached
to it as an exhibit or any statements or documents incorporated in it by reference.")). Coleman,
however, has since filed at least 22 additional sets of "exhibits" in this case that are neither referenced
in the amended complaint nor attached thereto. Because it would place an "unjustified burden on the
court" to determine the relevancy of each document to the complaint as it would be "forced to select
the relevant material from a mass of verbiage," these exhibits have not been considered. Salahuddin
v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (quoting 5 C. Wright & A. Miller, Federal Practice and
Procedure§ 1281, at 365 (1969)).
4
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indicates that Coleman "had been given a change of clothes, buckets are on order, and
a copy of the cell shield renewal was provided." Id. at 20. 5 Contrary to the disposition,
Coleman alleges that he never received a change of clothing. Id. at ,r 17.
On August 16, 2022, Coleman was placed on a "restricted diet." Id. at ,r 7. The
following day, Coleman informed Tomprowski that restricted meals were unlawful,
and he was taken off the restricted diet before lunch that same day. Id. at ,r,r 8-9.
On August 22, 2022, Coleman filed an Incarcerated Individual Claim Form,
claiming that his personal property and legal mail had not been sent from Auburn.
Id. at ,r 12; Claim Form at ECF No. 14 page 56. That same day, he also submitted a
law library request form. 	Id. 	at if 13. When he did not receive the material he
requested, on August 25, 2022, Coleman submitted a grievance that also complained
that he had not seen a law library officer in "over a week" while housed in the SHU
and was being denied access to courts. Id. 	at ,r 15 and page 21. The grievance
disposition indicates that there was no record of Coleman requesting law library
services. Id. at p. 22.
On August 27, 2022, Coleman complained to the law library administrator. Id.
at ,r 19; letter at page 49. Coleman indicated that on the previous day, August 26, a
law library officer refused to give him a library request form. Id at p. 43. Coleman
believed this to be an act of retaliation. Id. He filled out additional request forms on
5 The amended complaint and its supplement include attached exhibits. To the extent that the
attached exhibits are relevant to the incidents described in the amended complaint and its supplement,
the Court will consider them. See Cartee Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.
1991) ("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.").
5
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September 5 and September 8, 2022, and filed another grievance regarding deficient
law library services on September 6, 	2022. Id. 	at ,r,r 28-30, 	33. The materials
Coleman requested on August 22, 2022, were provided on September 8, 2022. Id. at
,r 32. The materials requested on September 5 and September 8, 2022, were provided
on September 11, 2022. Id. at ,r 37.
On August 29, 2022, Coleman filed another grievance stating that he was being
retaliated against as he was still in SHU with a cell shield covered in urine, feces,
and dirt, and had only one pair of clothes and underclothes. Id. at p. 23. He had not
been 	given 	hot 	water, 	was 	given 	limited 	toiletries 	(such 	as 	soap, 	deodorant,
toothpaste, etc.), 	and had not received his personal property. Id. 	The grievance
disposition indicates that Coleman was given several changes of clothes, a bucket,
and was never denied toiletries. Id. at p. 24.
On August 30, 2022, Coleman wrote a letter to Wolcott and requested that she
preserve certain video and audio evidence in relation to his litigation. Id. at ,r 24. On
August 31, 2022, Coleman filed another grievance requesting release from SHU. Id.
at ,r 25. Coleman alleged that he had been in SHU for more than fifteen consecutive
days citing New York Correction Law§ 137. 6 Id. at 25. In total, Coleman alleges that
he spent forty-two days in SHU confinement at Attica. ECF No. 14-3 at ,r 6.
OnSeptember 13, 2022, Coleman wrote to Wolcott indicating that he had not
been provided with his personal property or a comb and toothpaste. ECF No. 14 at
51. 	He 	further 	indicated that the 	Westlaw 	application in the 	law library was
6 The amended complaint uses SHU and segregated confinement interchangeably.
6
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malfunctioning. Id. Coleman alleges that Mr. H. failed to provide notary services to
him and failed to adequately investigate the issues Coleman raised regarding access
to law library services. See ECF No. 14-2 at p. 5.
SHU Confinement from August 2022 through June 2023
Coleman's claims against Annucci involve his SHU confinement and Annucci's
failure 	to 	implement 	policies 	consistent 	with 	the 	New 	York 	State 	Humane
Alternatives to Long-Term Solitary Confinement ("HALT") Act. ECF No. 14-3 ,r 24.
Coleman alleges that while he was in SHU confinement in alleged violation of the
HALT Act, he could not attend programming, recreation, or work assignments; he did
not have the opportunity to have good time restored; and, he was restrained during
out-of-cell activities. Id. at ,r 22. He claims that Annucci subjected him to cruel and
unusual punishment by permitting him to remain in segregated confinement with
various restrictions at Attica from August 10 through September 21, 2022, when he
was transferred out of Attica, and thereafter through June 25, 2023, 7 by disregarding
the provisions of the HALT Act. Id. at ,r,r 22, 24-25.
Strip Frisks at Attica, Lakeview, and Wende
from February through March 2024
Coleman was transferred several times between September 2022 and March
2024 from Attica to Midstate to Lakeview, to Wende and back to Attica, and describes
7 Although Coleman's SHU confinement continued through his incarceration at Midstate, which is
located in the Northern District, the Court has addressed the claims arising from Annucci's failure to
comply with the HALT Act in this District. The docket sheet in the Northern District Action confirms
that Annucci was terminated from that action on June 20, 2024, the date the claims against him were
transferred here.
7
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being strip-frisked on at least four occasions: February 26 and March 4, 5, and 26,
2024. ECF No. 14-3 at ,r 29. Specifically, the strip frisks that occurred on February
26, 2024, coincided with Coleman's transfer from Lakeview to Wende. Id. at ,r 14.
Coleman was frisked once at Lakeview and again upon arrival at Wende "without
being given opportunity to be body scanned as an alternative." Id. He was strip
frisked again on March 4, 2024, while being transferred to a step-down program. Id.
at ,r 15. The following day, he was transferred to Attica SHU and strip frisked again.
Id. On March 26, 2024, Coleman missed a court appearance because he refused to be
strip frisked. Id. at ,r 17. Coleman describes the frisks as "degrading." Id. at ,r,r 17,
29.
On March 22, 2024, 	Coleman filed a 	grievance regarding the strip frisks
conducted by Attica corrections officers. He described being told "to bend at the waist
and spread [his] ass cheeks," which was witnessed "by multiple officers." Id. at 58.
Coleman requested to be body-scanned instead of strip frisked but was told that
Attica did not have a body-scanner. Id. at 59. Coleman filed a second grievance on
March 26, 2024, indicating that being strip frisked violated his religious beliefs. Id.
On March 31, 2024, Coleman wrote a letter to Martuscello indicating that the strip
frisks were an invasion of his privacy. Id. at ,r 18.
Coleman requests 	money damages 	and injunctive 	relief "preventing . . .
Martuscello's employees from utilizing restraints on plaintiff when participating in
out-of-cell activities; commanding Martuscello to provide the plaintiff with six hours
of out-of-cell activities; and forbid[ding] Martuscello's employees from conducting
8
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strip frisks 	and in alternative utilize body scans when plaintiff is searched for
contraband." Id. at 10.8
III. 	STANDARD OF REVIEW
A. 	Review Under the IFP Statutes
A court shall dismiss a complaint in a civil action in which a prisoner seeks
redress from a governmental entity, or an officer or employee of a governmental
entity, if the court determines the action "(1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or (2) seeks monetary relief from a defendant
who 	is 	immune 	from 	such 	relief." 	28 	U.S.C. 	§ 1915A(b)(l)-(2); 	see 	28 	U.S.C.
§ 1915(e)(2)(B) (setting forth the same criteria for dismissal).
B. 	Pleading Standards
In evaluating a complaint, a court must accept all factual allegations as true
and must draw all inferences in a plaintiffs favor. 	See Larkin v. Savage, 318 F.3d
138, 139 (2d Cir. 2003) (per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir.
1999). 	Although 	"a 	court 	is 	obliged 	to 	construe 	[pro 	se] 	pleadings 	liberally,
particularly when they allege civil rights violations," McEachin v. McGuinnis, 357
F.3d 197, 200 (2d Cir. 2004), even a prose complaint must comply with Rule 8 of the
Federal Rules of Civil Procedure, which requires a complaint to make "a short and
plain statement of the claim showing that the pleader is entitled to relief." A
8 To the extent the amended complaint seeks a "preliminary injunction'' concerning these activities or
others that are occurring at his current facility, ECF No. [14-3] at 10, Coleman may move for that
relief in the appropriate forum.
9
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complaint states a claim for relief if the claim is "plausible on its face." Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007).
A claim will have "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). In other words,
although a pro se complaint need not provide every last detail in support of a claim,
it must allege sufficient facts to support the claim. See Shibeshi v. City of New York,
475 F. App'x 807, 808 (2d Cir. 2012) (summary order) (concluding that district court
properly dismissed a pro se complaint under § 1915(e)(2) because complaint did not
meet pleading standard in Twombly and Iqbal); accord Hardaway v. Hartford Pub.
Works Dep't, 879 F.3d 486, 489 (2d Cir. 2018) (setting forth same standard of review).
C. 	Leave to Amend
Generally, a court will afford a pro se plaintiff an opportunity to amend or to
be 	heard prior to 	dismissal, 	"unless 	[it] 	can rule 	out 	any possibility, 	however
unlikely ... , that an amended complaint would succeed in stating a claim." Abbas v.
Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (internal quotation marks and citation
omitted). But a court may deny leave to amend pleadings when any amendment
would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (per curiam) ("Where it appears
that granting leave to amend is unlikely to be productive □ ... it is not an abuse of
discretion to deny leave to amend.").
D. 	Section 1983 Claims
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To state a claim under 42 U.S.C. § 1983, a plaintiff "must allege that the
challenged conduct (1) was attributable to a person acting under color of state law,
and (2) deprived the plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States." Whalen v. County of Fulton, 126 F.3d 400,
405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)).
Section 1983 "creates no substantive rights; it provides only a procedure for redress
for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519
(2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
To establish liability against an official under § 1983, a plaintiff must allege
that individual's personal involvement in the alleged constitutional violation; it is not
enough to assert that the defendant is a link in the chain of command. See McKenna
v. Wright, 386 F.3d 432, 437 (2d Cir. 2004). Moreover, respondeat superior liability is
unavailable in a§ 1983 action. See Hernandez v. Keane, 341 F.3d at 137, 144 (2d Cir.
2003). "[T]here is no special rule for supervisory liability." Tangreti v. Bachmann, 983
F.3d 609, 618 (2d Cir. 2020). Rather, at the screening stage, a plaintiff must plausibly
allege "that each Government-official defendant, through the official's own individual
actions □ ... violated the Constitution." Id. (quoting Iqbal, 556 U.S. at 676).
IV. 	DISCUSSION
A. 	Eighth Amendment
Coleman alleges violations of the Eighth Amendment against Tomprowski,
Wolcott, 	and 	Annucci 	based 	on 	conditions 	in 	his 	cell, 	inadequate 	nutrition,
inadequate hygiene, and his continued confinement in SHU, with various restrictions
11
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and loss of privileges, for more than fifteen consecutive days in violation of the HALT
Act. ECF No. 14 at 12. As a convicted prisoner, Coleman's conditions of confinement
claims are analyzed under the Eighth Amendment.
1. 	Cell Conditions
"Under the Eighth Amendment, officials may not create inhumane prison
conditions, deprive inmates, of basic necessities, or fail to protect their health or
safety." Barnes v. County of Monroe, 85 F. Supp. 3d 696, 737 (W.D.N.Y. 2015) (quoting
Overton v. Bazzetta, 539 U.S. 126, 137 (2003)). However, "because society does not
expect or intend prison conditions to be comfortable, only extreme deprivations are
sufficient to sustain a 'conditions of confinement' claim." Blyden v. Mancusi, 186 F.3d
252, 263 (2d Cir. 1999). To allege a plausible Eighth Amendment claim based on
conditions of confinement, an inmate must plead that "(1) objectively, the deprivation
the inmate suffered was sufficiently serious that he was denied the minimal civilized
measure of life's necessities, and (2) subjectively, the defendant official acted with a
sufficiently culpable state of mind such as deliberate indifference to inmate health or
safety." Walker v. 	Schult, 	717 F.3d 119, 125 (2d Cir. 2013) (alteration, internal
quotations, and citation omitted).
"To meet the objective element, the inmate must show that the conditions,
either alone or in combination, pose an unreasonable risk of serious damage to his
health." Id. 	"[T]here 	is 	no 	static 	test 	to 	determine 	whether 	a 	deprivation 	1s
sufficiently 	ser10us; 	.[t]he 	conditions 	themselves 	must 	be 	evaluated in light 	of
contemporary standards of decency." Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012)
12
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(internal quotation marks and citation omitted). "To meet the subjective element, the
plaintiff must show that the defendant acted with 'more than mere negligence."'
Walker, 717 F.3d at 125 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). "The
prison official must know of, and disregard, an excessive risk to inmate health or
safety." Jabbar, 683 F.3d at 57 (citing Farmer, 511 U.S. at 837).
"[T]he regular conditions 	of SHU confinement 	do 	not violate 	the 	Eighth
Amendment." Encarnacion v. Goard, No. 12-CV-6180 CJS, 2020 WL 6291473, at *11
(W.D.N.Y. 	Oct. 	27, 	2020). 	The conditions of confinement that 	Coleman alleges,
however, 	appear to transcend the 	regular conditions 	of SHU confinement. 	For
instance, Coleman alleges that he was without a change of clothes, hot water, a
bucket, and had access to "limited cosmetics", i.e., toiletries, for at least nineteen days.
See ECF No. 14 at 23 (grievance filed on August 29, 2022). He also asserts that the
cell shield was covered with urine, feces, and dirt from previous occupants, and this
was not cleaned between August 10 and August 29, 2022. See id. Coleman does not
allege that the shield was ever cleaned or that he ever received hygiene supplies, a
change of clothes, or hot water. Thus, these conditions may have been present even
longer, as he remained at Attica through September 21, 2022. ECF No. 14-3 at ,r 7.
Inmates 	have 	the 	right 	to 	sanitary living 	conditions 	and 	the 	necessary
materials to maintain adequate hygiene. See Walker, 717 F.3d at 127 ("[T]he failure
to provide prisoners with toiletries and other hygienic materials may give rise to the
level of a constitutional violation."); see also Atkins v. County of Orange, 372 F. Supp.
2d 377, 406 (S.D.N.Y. 2003) ("The failure to regularly provide prisoners with ... toilet
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articles including soap, razors, combs, toothpaste, [and] toilet paper ... constitutes a
denial ofpe!sonal hygiene and sanitary living conditions."). Occasional or temporary
deprivations of hygiene items, however, do not constitute deprivations of basic human
needs to meet the objective component of the Eighth Amendment. See Trammell v.
Keane, 338 F.3d 155, 165 (2d Cir. 2003) (deprivation of "toiletries for approximately
two weeks-while perhaps uncomfortable" 	did not violate 	Eighth Amendment);
Fernandez v. Armstrong, No. 3:02-cv-2252 (CFD), 2005 WL 733664, at *5-6 (D. Conn.
Mar. 30, 2005) (up to sixteen-day deprivation of toothbrush, toothpaste, soap, and
shampoo did not violate the Constitution); Davidson v. Murray, 371 F. Supp. 2d 361,
372 	(W.D.N.Y. 	2005) 	(finding 	that 	an 	Eighth 	Amendment 	violation 	was 	not
established, based upon conditions "amount[ing] to no 	more than occasional or
temporary deprivations of personal hygiene items, with no ... indicat[ion] that
plaintiff suffered any 'specific deprivation of a single human need' ... , or other
accompanying 	harm" 	(citation 	omitted)). 	The 	same 	holds 	true 	for 	unsanitary
conditions. See Florio v. Canty, 954 F. Supp. 2d 227, 234 (S.D.N.Y. 2013) ("[E]xposure
to ... waste [that is] intermittent or limited to a matter of hours" generally does not
violate the Eighth Amendment).
While the conditions to which Coleman was exposed may not be particularly
extreme, given the alleged duration of his lack of access to clean clothes and toiletries
and his close proximity to human waste on the cell shield, at this early stage, Coleman
has pled facts sufficient to satisfy the objective prong. 	See Townsend v. Sweet, No.
3:19-CV-580 (SRU), 2019 WL 4139469, at *7 (D. Conn. Aug. 30, 2019) (permitting
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Eighth Amendment conditions claim based on denial of hygiene items and clean
clothing for several days to proceed on initial review); Florio, 954 F. Supp. 2d at 234
("A Section 1983 claim will not lie for prison conditions that are merely unpleasant.
However, chronic exposure to human waste will give rise to a colorable claim.").
Coleman has also satisfied the subjective prong. He alleges that he asked
Tomprowski for a change of clothes on August 12, 2022, the day after he arrived at
Attica. ECF No. 14 at ,r 5. Coleman filed a grievance regarding his cell conditions,
which 	was 	investigated 	on August 	26, 	2022, 	by 	"Sgt. 	T.," 	(Tomprowski) 	who
determined that Coleman was given a change of clothes. ECF No. 14 at 19-20. He
filed a second grievance on August 29, 2022, indicating that his cell shield was still
filthy, he had not been given a bucket or change of clothes, and he had "limited
cosmetics." Id. at 23. Tomprowski also investigated this grievance and determined
that Coleman had been given clothes, a bucket, and was never denied toiletries. Id.
at 24.
Contrary to Tomprowski's written investigative findings, Coleman alleges that
Tomprowski "failed to remove and/or clean the feces, urine, and dirt-stained cell
shield from [his] cell ... failed to provide [him] with a change of clothing, hot water,
soap, 	toothpaste, 	comb, 	and deodorant, 	... 	[and] 	failed to provide 	[him] 	with
wholesome and nutritious food." Id. at 12.
Accepting Coleman's allegations, Tomprowski actively attempted to conceal
the cell conditions that posed an excessive risk to Coleman's heath and took no action
to 	remedy them. 	Therefore, 	Coleman's conditions 	of confinement claim against
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Tomprowski regarding his cell conditions at Attica from August to September 2022
may proceed to service. 9
Coleman, however, has not demonstrated W'olcott's personal involvement in
any constitutional violation arising from his SHU confinement. Coleman alleges that
he wrote a letter on August 30, 2022, to Wolcott telling her she would be liable in a
lawsuit if she failed to preserve evidence. ECF No. 14 at ii 24, p. 49. He wrote her a
second letter on September 13, 2022, indicating that he had not received personal
hygiene items or his property. Id. at p. 51.
"Even before Tangreti, it was well-established that a supervisor's failure to
respond to a letter of complaint does not provide a sufficient basis to find that the
defendant was personally involved in the deprivation alleged, and the review, denial
or 	affirmance 	of a 	denial 	of a 	grievance 	is 	insufficient 	to 	establish 	personal
involvement of a supervisor in the denial of a constitutional right." Lopez v. Chappius,
No. 6:17-CV-06305 EAW, 2021 WL 859384, at *2 (W.D.N.Y. Mar. 8, 2021) (internal
citations and quotations omitted). Wolcott's receipt of communications from Coleman
is 	not 	sufficient 	to 	establish 	her 	personal 	involvement 	in 	the 	underlying
constitutional violation. Therefore, Coleman's Eighth Amendment claim is dismissed
as against Wolcott, but he is granted leave to amend the claim.
2. 	Inadequate Nutrition
9 Permitting this or any claim to proceed to service does not immunize it from a motion to dismiss or
summary judgment motion. See Jones v. Sullivan, No. 9:19-CV-0025BKSCFH, 2020 WL 5792989, at
*5 (N.D.N.Y. Sept. 29, 2020) ("A court's initial screening under § 1915(e) and/or § 1915A does not
preclude a later dismissal under Fed. R. Civ. P. 12(b)(6).").
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As with other cell conditions, 	to 	amount to 	a 	constitutional violation, 	"a
deprivation of food or nutrients must create a serious danger to the health of the
inmate." Abdullah v. NYPD 30th Precinct, 24-CV-0137 (LTS), 2024 WL 325385, at *6
(S.D.N.Y. Jan. 	29, 	2024). 	Coleman's sole allegation is that he was placed on a
"restricted diet" for less than two days. ECF No. 14 at ,r 7-9. Coleman, however, does
not describe what the "restricted diet" entailed, only that it was prohibited. Without
more, the amended complaint fails to plausibly allege that the restricted diet placed
Coleman's health in serious danger, particularly given the limited duration it was in
effect. Cf. Hutto v. Finney, 437 U.S. 678, 683, 686-87 (1978) (holding that a diet ofless
than 1,000 calories per day would be "intolerably cruel for weeks or months" to
implicate the Eighth Amendment); see Phelps v. Kapnolas, 308 F.3d 180, 187 (2d Cir.
2002) (suggesting that placing an inmate on a nutritionally inadequate restricted diet
for fourteen days was likely to cause serious harm).
Further, 	after 	Coleman informed 	Tomprowski that 	restricted 	diets 	were
unlawful, the diet was immediately ceased. ECF No. 14 at ,r 9. 'Wholly absent" from
the amended complaint are any allegations that Tomprowski or any other defendant
"acted with a sufficiently culpable state of mind" in placing Coleman on a "restricted
diet." Richards v. County of Nassau, 24-CV-7957 (GRB) (ARL), 2025 WL 51335, at *4
(E.D.N.Y. Jan. 8, 2025). Accordingly, this claim is dismissed with leave to amend.
3. 	The HALT Act
The Court interprets the amended complaint as alleging that Annucci violated
his rights under the Eighth Amendment by failing to comply with the HALT Act. In
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particular, the amended complaint alleges that unlike his successor Martuscello,
Annucci failed to promulgate regulations for SHU confinement in conformance with
the HALT Act, resulting in Coleman serving a period of SHU confinement that
spanned from August 10, 2022, to June 25, 2023, with a variety of restrictions and
loss of privileges. ECF No. 14-3 at ,r,r 21-25. 10 11
The HALT Act "was enacted by the New York State Legislature in 2021 and
went into effect April 1, 2022." Delgado v. State, 82 Misc. 3d 307, 313 (N.Y. Ct. CL
2023). The HALT Act, among other things, limits segregated confinement to fifteen
consecutive days and twenty days within any sixty-day period. See N. Y 	State Corr.
Officers & Police BenevolentAss'n, Inc. v. Hochul, 607 F. Supp. 3d 231,236 (N.D.N.Y.
June 16, 2022) (describing the terms of the HALT Act generally); see also N.Y.
Correct. Law § 137.
"[W]hether incarceration in the SHU violates the Eighth Amendment ...
depends on the duration and conditions of the confinement." Gonzalez v. Hasty, 802
F.3d 212, 224 (2d Cir. 2015). "An Eighth Amendment claim predicated on SHU
confinement therefore typically accrues only after an inmate has been confined in the
SHU for a prolonged period of time." Id.
10 To the extent that Coleman "may be raising a state law claim alleging a violation of the HALT Act,
this Court would not have jurisdiction over such a claim." Hamilton v. Martucello, No. 24-CV-6500-
CJS, 2025 WL 713032, at *6 n.4 (W.D.N.Y. Mar. 5, 2025). Under N.Y. Corr. Law, § 24, federal district
courts are divested of "subject matter jurisdiction over state law claims for money damages that are
asserted against DOCCS employees who were acting in the scope of their employment when the
alleged violation occurred." Id.
11 The end of Coleman's SHU confinement appears to coincide with Martuscello's appointment as
Acting 	DOCCS 	Commissioner 	in 	June 	2023. 	See 	https://doccs.ny.gov/commissioner-daniel-f-
martuscello-iii (last visited May 28, 2025).
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At the screemng stage, 	Coleman's allegations that his SHU confinement,
lasting months and in contravention to the requirements of the HALT Act, suffice to
state a colorable claim that may proceed to service against Annucci. See Reynolds v.
Arnone, No. 3:13-CV-1465 (SRU), 2025 WL 974843, at *11 (D. Conn. Mar. 31, 2025)
("Tangreti did not immunize government officials who serve in supervisory roles from
Section 	1983 	liability. 	Tangreti 	did 	not 	unsettle 	clearly 	established 	law 	that
supervisory officials may be held liable for their own conduct. Nor did Tangreti hold
that a government official in a supervisory position could not be held liable for their
own conduct with respect to creating, adopting, or enforcing an unconstitutional
policy."); 	Brunache 	v. 	Annucci, 	No. 	22-CV-196 	(JLS), 	2023 WL 	146850, 	at *12
(W.D.N.Y. Jan. 9, 2023) ("While Tangreti overruled Colon's five-factor test, including
factor (3)-the defendant created a policy or custom under which unconstitutional
practices occurred, it did not suggest that a defendant who created a policy or custom
under which unconstitutional practices occurred, or allowed the continuance of such
a policy or custom, cannot be found liable under Section 1983." (internal quotation
marks and internal citations omitted)).1 2
4. 	Strip Frisks
Coleman asserts this claim against Martuscello, Commissioner of DOCCS.
Specifically, Coleman states that Martuscello acted with deliberate indifference in
12 Coleman also alleges conditions of confinement claim against Mark Passage, but this claim appears
to have arisen at Midstate. See ECF No. 14-2 at 5.
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permitting degrading strip frisks and failing to promulgate regulations requiring
body scanning instead. ECF No. 14-3 ,r,r 29-30.
Under 	certain 	limited 	circumstances, 	the 	manner 	1n which 	a 	search 	is
conducted may give rise to an Eighth Amendment claim. See Crawford v. Cuomo, 796
F.3d 252, 258 (2d Cir. 2015) ("[A] search may not be undertaken maliciously or for
the purposes of sexually abusing an inmate."). The "principal inquiry" a court must
make "is whether the contact is incidental to legitimate official duties, such as a
justifiable pat frisk or strip search, or by contrast whether it is taken to arouse or
gratify the officer or humiliate the inmate." Id. at 257-58. "[P]rison officials looking
•for contraband may subject inmates to reasonable strip searches and cavity searches,"
but such searches "may not be undertaken maliciously or for the purposes of sexually
abusing the inmate." Id. at 258. Strip frisks are unconstitutional where they do "not
serve a legitimate penological goal, such as ... to intimidate, harass, or punish a
prisoner." Jones v. City of New York, 18-CV-1937 (VSB), 2020 WL 1644009, at *12
(S.D.N.Y. Apr. 2, 2020).
Coleman does not plausibly allege that that the strip frisk policy violates the
Eighth Amendment or that he was subjected to malicious or abusive strip frisks. "A
strip search without elements of sexual harassment, excessive force, or indeed any
physical contact at all is not 'sufficiently serious' under the objective prong to support
a claim based on cruel and unusual punishment under the Eighth Amendment."
George v. City of New York, No. 12 Civ. 6365 (PKC) (JLC), 2013 WL 5943206, at *IO
(S.D.N.Y. Nov. 6, 2013). None of these aggravating circumstances have been pled
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here. Accordingly, to the extent that this claim is premised on an Eighth Amendment
violation, it is dismissed, and Coleman is granted leave to amend.
B. 	First Amendment
1. 	Retaliation
Although Coleman broadly alleges that he was retaliated against by "Attica
employees" for filing grievances, the only specific retaliation claim he currently pleads
appears to be against Tomprowski for failing to address his cell conditions. ECF No.
14 at 12, 23.
"It is axiomatic that prison officials may not retaliate against prisoners for
exercising their constitutional rights." Grant v. Shields, 1: 19-CV-1188 EAW, 2022
WL3587754, at *3 (W.D.N.Y. Aug. 22, 2022). To allege a § 1983 retaliation claim, a
prisoner must show: "(1) that the speech or conduct at issue was protected, (2) that
the defendant took adverse action against the plaintiff, and (3) that there was a
causal connection between the protected speech and the adverse action." Espinal v.
Goard, 558 F.3d 119, 128 (2d Cir. 2009).
Only "retaliatory conduct that would 'deter a similarly situated individual of
ordinary firmness from exercising his constitutional rights"' constitutes an "adverse
action". Lashley v. Wakefield, 483 F. Supp. 2d 297, 300 (W.D.N.Y. 2007) (alteration
omitted) (quoting Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004)). "This objective
test applies even if the plaintiff was not himself subjectively deterred from exercising
his rights." Burroughs 	v. 	Mitchell, 	325 	F. 	Supp. 	3d 249, 	280 	(N.D.N.Y. 	2018).
Moreover, courts recognize that retaliation claims by prisoners are "prone to abuse"
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since prisoners could potentially claim retaliation based on any decision they dislike.
Vazquez v. City of New York, No. 1:21-CV-01573 (PAE)(VF), 2022 WL 2704763, at *13
(S.D.N.Y. June 17, 2022) ("A prisoner's claims of retaliation must be examined with
particular care, however, because they are prone to abuse since prisoners can claim
retaliation 	for 	every 	decision 	they 	dislike.") 	(quotation 	omitted), 	report 	and
recommendation adopted, 2022 WL 2704469 (S.D.N.Y. July 11, 2022). "Accordingly,
even though '[p ]risoners ... have a constitutional right of access to the courts and to
petition the government for the redress of grievances, and prison officials may not
retaliate against prisoners for the exercise of that right,' courts must examine a
prisoner's retaliation claim with 'skepticism and particular care."' Speaks v. Saeed,
No. 	14-CV-06826 (JMA)(AYS), 2022 WL 541767, at *7 (E.D.N.Y. Feb. 23, 2022)
(quoting Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
While "the filing of prison grievances is a constitutionally protected activity,"
Davis v. Goard, 320 F.3d 346, 352-53 (2d Cir. 2003), Coleman's allegation that his
grievances were a substantial motivating factor for the failure to provide him with
clothing or toothpaste or to clean his cell shield are unsupported by any factual
allegations. "Without any non-conclusory allegations that the grievances and the
wrongful conduct are causally connected,'' Coleman fails to state a claim. Herbert v.
Raczkowski, 24-CV-0485 (JLS), 2024 WL 3694215, at *8 (W.D.N.Y. Aug. 5, 2024); see
Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) ("[A] complaint which alleges
retaliation in wholly conclusory terms may safely be dismissed on the pleadings
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alone ... "). At this stage, Coleman's retaliation claim is dismissed, but he is granted
leave to amend this claim.
2. 	Access to Courts (Library/Notary)
Coleman alleges this claim against Mr. H., who failed to provide him notary
services and failed to remedy Coleman's concerns regarding the law library services.
ECF No. 14 at 12.
The Constitution "does not require unlimited and unrestricted access to a law
library at the demand of a prisoner." Gamble v. City of New York ex rel. NYC Dep't of
Corr., No. 04 Civ. 10203 (TPG), 2009 WL 3097239, at *6 (S.D.N.Y. Sept. 25, 2009)
(internal quotation marks 	and citation omitted)). 	The right of access to courts
requires states "to give prisoners a reasonably adequate opportunity to present
claimed violations of fundamental constitutional rights to the courts." Bounds v.
Smith, 430 U.S. 817, 825 (1977), modified on other grounds by Lewis v. Casey, 518
U.S. 343, 350 (1996).
To state a claim for denial of access to the courts, a plaintiff must allege facts
showing that the defendant's conduct "was deliberate and malicious, and that the
defendant's actions resulted in an actual injury to the plaintiff." Banks v. County of
Westchester, 168 F. Supp. 3d 682, 692 (S.D.N.Y. 2016). To demonstrate actual injury,
a plaintiff must allege that "the defendant's conduct frustrated the plaintiffs efforts
to pursue a nonfrivolous claim." Murray v. Noeth, 6:19-CV-06342 EAW, 2025 WL
923255, at* 5 (W.D.N.Y. Mar. 27, 2025). "Mere 'delay in being able to work on one's
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legal 	action 	or 	communicate 	with 	the 	courts 	does 	not 	nse 	to 	the 	level 	of a
constitutional violation."' Davis v. Goard, 320 F.3d 346, 352 (2d Cir. 2003).
Coleman has failed to allege deliberate and malicious acts or actual injury in
this case. By Coleman's own admissions, he eventually received the requested law
library materials, albeit outside of a 24-hour period, and fails to point to any prejudice
arising from this delay. See Ramsay v. Coughlin, l F. Supp. 2d 198, 205 (W.D.N.Y.
1998) (dismissing First Amendment access to courts claim based upon, inter alia,
delayed notary services where the plaintiff could not demonstrate prejudice to any
ongoing lawsuit).
Coleman has also failed to assert that delays in notary services prejudiced any
ongoing case. In fact, Coleman attaches his filings from his Court of Claims action,
which 	were 	returned 	because 	they 	were 	unverified, 	not 	because 	they 	were
unnotarized. ECF No. 14 at 84. He makes no further claim that his attempts to file
were rejected or that he was for some reason foreclosed from refiling his claim. See
Christopher v. Harbury, 536 U.S. 403, 415 (2002) ("[T]he complaint must identify a
remedy that may be awarded as recompense but not otherwise available in some suit
that may yet be brought."). At this stage, Coleman has failed to state a claim for
denial of access to courts, and this claim is dismissed with leave to amend.
3. 	Access to Courts - Strip Frisks
Coleman also asserts that Martuscello denied him access to courts by requiring
that he be strip frisked prior to his court appearances. ECF No. 14-3 at ,r 31. Because
Coleman refused to be strip frisked, he missed three court appearances.
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Policies requiring strip searches on the way to and from court appearances
have been found not to violate the Constitution because they "serve the legitimate
penological purpose of preventing contraband from coming into and out of prisons
and jails." Thompson v. City of New York, No. 16 Civ. 824 (PKC), 2017 WL 1929552,
at *2 (S.D.N.Y. May 9, 2017). Coleman identifies no non-penological purpose for the
strip frisks that he refused.
Nor does he allege that his failure to attend the court proceeding hindered his
pursuit of a legal claim. See Chinloy v. Seabrook, No. 14-CV-350 (MKB), 2014 WL
1343023, at * 2 (E.D.N.Y. Apr. 3, 2014) (dismissing an access to courts claim for a
missed court appearance where plaintiff pled no injury); see also Dotson v. Farrugia,
No. 11 Civ. 1126 (PAE), 2012 WL 996997, at *6 (S.D.N.Y. Mar. 26, 2012) (dismissing
an access to court claim where plaintiff alleged a missed housing court date yet did
not provide "any information about the underlying claim at housing court" or allege
that the underlying relief was denied to him). Therefore, this claim is dismissed with
leave to amend.
C. 	Fourth Amendment - Strip Frisks
In addition to alleging an Eighth Amendment violation against Martuscello
regarding the strip frisks, the amended complaint, which makes repeated references
to 	violations 	of Coleman's 	privacy 	rights, 	ECF 	14-3 	at 	8-9, 	asserts 	a 	Fourth
Amendment violation.
"[I]nmates 	retain 	a 	limited 	right 	to 	bodily 	privacy 	under 	the 	Fourth
Amendment." Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016). "To state a cognizable
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privacy claim, an inmate must allege that (1) 'he exhibited an actual, subjective
expectation of bodily privacy,' and (2) prison officials 'lacked sufficient justification to
intrude on the inmate's Fourth Amendment rights."' Telesford v. Annucci, 693 F.
App'x 1, 3 (2d Cir. 2017) (summary order) (alterations omitted) (quoting Harris, 818
F.3d at 57).
Coleman has attached the directive regarding strip frisks, Directive No. 4910:
Control of and Search for Contraband. ECF No. 14-3 at 155. The directive states that
"a strip 	frisk means a 	search of an incarcerated individual's clothes and body,
including a visual inspection of body cavities." Id. at 161. Strip frisks are permitted
upon a finding of probable cause to believe that there is contraband concealed within
the inmate's body cavities. Id. at 162. The directive requires these searches to be
conducted "in a manner least degrading to all involved." Id. at 163.
Pursuant to Directive 4910, strip frisks are permitted in several situations
regardless of the existence of probable cause: (1) when an inmate is transferred from
one DOCCS facility to another; (2) after contact visits; (3) upon reception to SHU or
other Diversion Units; (4) upon departing SHU or other Diversion Units; (5) when
being transferred from one SHU or Diversion Unit to another; (6) upon admission to
a 	secure 	unit; 	(7) 	upon admission to 	a 	psychiatric unit; 	(8) 	upon return from
temporary release or furlough; and (9) prior to departing on an e-scorted trip. See Id.
at 167-68.
Nothing in the amended complaint suggests that the strip frisks described by
Coleman were not conducted in compliance with Directive 4910. Indeed, the searches
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he complains of appear to have been conducted when he was transferred from one
DOCCS facility to another, from diversion program to diversion program, or was
preparing to depart on an escorted trip-all of which would be permissible under
Directive 4910.
"There is no question that strip searches may be unpleasant, humiliating, and
embarrassing to prisoners, but not every psychological discomfort a prisoner endures
amounts to a constitutional violation." Miller v. Bailey, No. 05-CV-5493 (CEA/LB),
2008 WL 1787692, 	at *9 (E.D.N.Y. Apr. 	17, 	2008). 	Certain strip frisks 	can be
considered unreasonable, including redundant strip frisks where the inmate has no
opportunity to secure contraband between the searches. See Jones, 2020 WL 1644009,
at *13; Bradshaw v. City of New York, 15 Civ. 4638 (ER), 2018 WL 818316, at * 6
(S.D.N.Y. Feb. 9, 2018) ("[A] reasonable juror could conclude that [repeated searches
while the inmate is confined and under surveillance] were unreasonable and violated
[the plaintiffs] 	Fourth Amendment rights."). However, nothing Coleman alleges
suggests that the strip frisks he experienced were unreasonable. Accordingly, this
claim is dismissed with leave to amend.
D. 	Fourteenth Amendment
1. 	Equal Protection
Coleman generally asserts that Annucci and Martuscello denied him equal
protection: Annucci in connection with his purported failure to implement the HALT
Act, and Martuscello in permitting the strip frisk policy. ECF No. 14-3 at ,r 20. To
state a colorable claim under the Fourteenth Amendment's equal protection clause,
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a plaintiff must allege that: "(1) the person, compared with others similarly situated,
was selectively treated, and (2) the selective treatment was motivated by an intention
to discriminate on the basis of impermissible considerations, such as race or religion,
to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith
intent to injure the person." FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir. 1992)
(quoting Wayte v. United States, 470 U.S. 598, 608-09 (1985)).
Coleman pleads no facts suggesting that the strip frisk policy or his SHU
confinement were 	discriminatory or that he was treated differently from 	other
similarly situated inmates. 13 See Cromwell v. 	Hendel, 	20-CV-317-LJV, 2022 WL
16540353, at *4 (W.D.N.Y. Oct. 28, 2022) (dismissing equal protection claim where
plaintiff has pled no facts to suggest that any defendant discriminated against him);
see also Green v. Martin, 224 F. Supp. 3d 154, 171 (D. Conn. 2016) (dismissing an
equal protection claim where the plaintiff failed to allege that he was treated any
differently from another prisoner in the context of prison searches). Accordingly,
Coleman's equal protection claims against Martuscello and Annucci are dismissed
with leave to amend.
2. 	Due Process
Coleman does 	not expressly allege 	a violation of his 	due process rights;
however, he mentions the Fourteenth Amendment under the claims against Wolcott
and Tomprowski. ECF No. 14 at 12'. To state a claim for the denial of due process, "a
13 Among Coleman's grievances, he alleges at one point that the strip frisks were against his
religion. ECF No. 14-3 at 59. He, however, does not raise any similar challenge in the amended
complaint.
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plaintiff must establish (1) that he possessed a liberty interest and (2) that the
defendant(s) deprived him of that interest as a result of insufficient process." Giana
v. 	Belsky, 238 F.3d 223, 225 (2d Cir. 2001). A liberty interest arises where the
objected-to restraint "imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484
(1995).
Coleman was served with a misbehavior report, and he was found guilty of the
charges contained therein. He was sentenced to forty-seven months and twenty-nine
days in SHU and served forty-two days of that sentence at Attica. During his SHU
confinement at Attica, Wolcott and Tomprowski were also responsible for various cell
shield orders for Coleman's cell. ECF No. 14 at ,r 6, 10.
Even 	if 	Coleman 	has 	established 	a 	liberty 	interest 	in 	avoiding 	SHU
confinement or in an unshielded cell, he fails to allege that he was deprived of those
interests without proper process. 	Nor are there any allegations that Wolcott or
Tomprowski had any personal involvement in his SHU confinement. Therefore,
Coleman's claims against Tomprowski and Wolcott are dismissed with leave to
amend
E. 	Fifth Amendment
Coleman states that Wolcott, Tomprowski, and Mr. H. violated his rights under
the Fifth Amendment. ECF No. 14 at 12. The Fifth Amendment's due process clause
only applies to the federal government, and there is no claim that Coleman's Fifth
Amendment privilege against self-incrimination was violated. See Vieira v. Honeoye
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Cent. Sch. Dist., No. 09-CV-6163-CJS-JWF, .2013 WL 1915770, at *6 n.4 (W.D.N.Y.
May 8, 2013). Accordingly, this claim is dismissed without leave to amend.
V. 	CONCLUSION
Coleman's 	Eighth 	Amendment 	claims 	against 	Tomprowski 	and 	Annucci
arising from his SHU confinement may proceed to service. His remaining claims are
dismissed with leave to amend.
Coleman may file a second amended complaint only as directed above within
forty-five days of the date of this Order. The second amended complaint must
comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Coleman is
advised that an amended complaint is intended to completely replace the prior
amended complaint in the action. "It is well established that an amended complaint
ordinarily supersedes the original and renders it of no legal effect." Arce v. Walker,
139 F.3d 329, 332 n. 4 (2d Cir. 1998) (quoting Int'l Controls Corp. v. Vesco, 556 F.2d
665, 668 (2d Cir. 1977)). Therefore, the second amended complaint must include all
allegations against each defendant so that the second amended complaint stands
alone as the only complaint in this action.
VI. 	ORDER
IT IS HEREBY ORDERED that Coleman's Eighth Amendment claims against
Tomprowski and Annucci arising from his SHU confinement may proceed to service;
and it is further
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ORDERED that Coleman is granted leave to file a second amended complaint
as directed above by no later than forty-five days after the date of this Order;
and it is further
ORDERED that the Clerk of the Court is directed to send Coleman with this
Order a copy of the amended complaint (ECF. No. 14), a blank§ 1983 complaint form,
and the instructions for preparing an amended complaint; and it is further
ORDERED that in the event Coleman fails to file a second amended complaint
as directed above within forty-five days of the date of this Order, the Clerk of Court
is directed to cause the United States Marshals Service to serve copies of the
summons, amended complaint (ECF No. 14), and this Order upon Tomprowski and
Annucci, without Coleman's payment therefore, unpaid fees to be recoverable if this
action terminates by monetary award in Coleman's favor, and the remaining claims
will be dismissed with prejudice without further order of this Court; 14 and it is further
ORDERED 	that 	upon 	receipt 	of the 	summons 	and 	amended 	complaint,
Annucci and Tomprowski shall answer or otherwise respond; and it is further
ORDERED that pursuant to Valentin v. Dinkins, the Court requests that the
New York State Attorney General's Office ascertain the full name and last known
address for Sergeant Tomprowski and the last known address of Annucci. 	The
Attorney General's Office need not undertake to defend or indemnify the defendant
14 If Plaintiff files an amended complaint as directed in this Order, service will be deferred until such
time as the Court has screened the amended complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(a)-(b).
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at this juncture. This order merely provides a means by which Coleman may name
and properly serve them as instructed by the Second Circuit in Valentin.
The Attorney General's Office shall produce the information specified above
within thirty days of the date of this Order, either electronically in CM/ECF by
selecting "Valentin Response" under "Discovery Documents" or by mail to the Pro Se
Litigation Unit, United States District Court, 100 State Street, Rochester, New York
14614; 15 and it is further
ORDERED that the Clerk of Court is directed to send a copy of the amended
complaint (ECF No. 14) and this Order to Ted O'Brien, Assistant Attorney General
in Charge, Rochester Regional Office, at Ted.O'Brien@ag.ny.gov, and he is directed
to provide the Valentin information directed above; and it is further
ORDERED that, pursuant to Western District of New York Local Rule of Civil
Procedure 5.2(d), Coleman must notify the Court in writing if his address changes.
Failure to do so may result in dismissal of the action with prejudice.
SO ORDERED.
Dated: June 11L, 2025
Rochester, New York
~V/CUL-HO 	.EREDITHA. VACCA
UNITED STATES DISTRICT JUDGE
15 Responses filed electronically in CM/ECF are reviewed by Court personnel before being made
public.
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Case 6:24-cv-06182-MAV Document 112 Filed 06/17/25 Page 32 of 32