Tripathy v. Schneider et al

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Sanjay Tripathy,
Plaintiff,
v.
Andrea N. Schneider, et al.,
Defendants.
REPORT and
RECOMMENDATION
21-cv-6339-FPG-MJP
APPEARANCES
For Plaintiff: 	Sanjay Tripathy, pro se
2013 Jadewood Drive
Morrisville, NC 27560
For Defendants: 	Muditha Halliyadde, Esq.
Assistant Attorney General
Office of the Attorney General
Rochester Regional Office
144 Exchange Blvd, Ste 200
Rochester, NY 14614
INTRODUCTION
Plaintiffs often wish to add claims and facts to their complaints.
Because federal courts take a generous approach to adding claims and
facts, they frequently allow plaintiffs to make changes. But courts will
not permit pointless amendments.
Courts use the term “futile” for such amendments. They are point-
less, or futile, because if the plaintiff tried to bring them in his original
complaint, the court would dismiss them. Here, I report and recommend
that the Hon. Frank P. Geraci, Jr., Senior District Judge, find all of
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Tripathy’s proposed amendments futile and thus DENY his motion to
amend. I provide an overview of why I recommend denial.
SUMMARY
Tripathy’s proposed amendments are futile for two sets of rea-
sons.
Tripathy’s proposed changes to his complaint are futile for two
independent sets of reasons. I note that I have addressed his RLUIPA
claim separately below.
Jurisdictional defects. The first set involves this Court’s lack
of jurisdiction. First, Tripathy has not exhausted administrative reme-
dies. And second, state courts have exclusive jurisdiction over his state
claims. Third, he cannot sue state agencies and officials in their official
capacities under the Eleventh Amendment. I find this is true of all of
Tripathy’s federal claims, including RLUIPA.
Pleading failures. Setting aside jurisdictional defects, the other
set of reasons involves how Tripathy wrote his proposed amended com-
plaint. Tripathy fails to plead adequately several of the claims he would
like to add. 	These claims include Section 1983 and 1985 conspiracy, in
addition to a garden variety Section 1983 claim.
First, Tripathy fails to state a claim for Section 1983 and 1985
conspiracy because he fails to plead an underlying constitutional viola-
tion. Second, his conspiracy claims also fail because they are based on
conclusory allegations. Third, even if Tripathy adequately pled the
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conspiracy claims, both of his conspiracy claims are barred by the intra-
corporate conspiracy doctrine. Finally, Tripathy fails to state any Sec-
tion 1983 claims—either deliberate indifference or conspiracy—because
he fails to plead personal involvement.
Tripathy’s RLUIPA claim is tricky—but still futile.
Jurisdictional defects. Tripathy’s RLUIPA claim is thornier. I
start with jurisdictional defects. As indicated, I find he cannot sue state
officials in their official capacities under RLUIPA. Tripathy likewise
cannot obtain injunctive-style relief under RLUIPA because he success-
fully vacated his conviction under New York State law. DOCCS released
him.
Monetary damages. But Tripathy argues he is entitled to mon-
etary damages under RLUIPA against Defendants in their individual
capacities. RLUIPA’s statutory language provides two potential paths
to monetary damages.
The first path. The Second Circuit barred the first path, “conclud-
ing that RLUIPA does not provide a cause of action against state officials
in their individual capacities because the legislation was enacted pursu-
ant to Congress’ spending power[.]” Washington v. Gonyea, 731 F.3d 143,
145 (2d Cir. 2013). Tripathy argues that Washington v. Gonyea is no
longer good law. But I disagree.
The second path. The second path is even more tricky. Congress
provided an alternative basis for RLUIPA under the Commerce Clause.
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Washington v. Gonyea explicitly does not apply to this basis. Even as-
suming Tripathy could state a RLUIPA claim under the Commerce
Clause, which I find, in any event, he cannot, he fails to show a connec-
tion to interstate commerce.
In sum, Tripathy’s RLUIPA claim is futile because of pleading de-
ficiencies and jurisdictional defects.
I report and recommend that the Hon. Frank P. Geraci, Jr., Dis-
trict Judge, deny Tripathy’s motion to amend in its entirety.
For the reasons I provide, I report and recommend that Judge
Geraci DENY Tripathy’s motion to amend in its entirety. Tripathy has
14 days from the filing of this report and recommendation to file objec-
tions.
BACKGROUND
A New York City jury convicted Tripathy of a criminal sexual act
in the first degree, sexual abuse in the first degree, and related offenses
in May 2018. The Court sentenced Tripathy to seven years of imprison-
ment. The First Department affirmed his conviction. See generally, Peo-
ple v. Tripathy, 187 A.D.3d 515 (1st Dep’t 2020), lv. denied, 36 N.Y.3d
1101 (2021).
After 	his 	unsuccessful 	appeals, 	Tripathy 	was 	remanded 	to
DOCCS custody. From August 2018 to January 2021, he was at Gow-
anda. 	See 	Tripathy 	v. 	McCloskey, 	No. 	21-cv-6584 	(CS), 	2021 	WL
5771129, at *1 (S.D.N.Y. Dec. 6, 2021). DOCCS moved Tripathy to
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Fishkill in January 2021, and again from Fishkill to Collins in October
2021. See id.
DOCCS released Tripathy in November 2022 after he successfully
moved to vacate under CPL § 440.10. See Tripathy v. Brotz, No. 6:22-cv-
6469-FPG, 2023 WL 4032831, at *1 (W.D.N.Y. June 15, 2023). While
incarcerated and since, Tripathy has not been idle. Tripathy has several
cases pending before this Court, among others. Many of his other cases
present similar claims. That does not decide, one way or the other,
whether his claims may proceed here. 	But I analyze his claims (and
proposed claims) only in the case before me.
After the Court rejects his initial attempts at amending, Tripathy
brings the pending motion to amend.
Tripathy’s proposed second amended complaint has taken him
considerable time to file. After filing his amended complaint, Tripathy
made several attempts to file a second amended complaint. The Court
rebuffed him. (Text Order, ECF No. 45, Feb. 28, 2023; Text Order, ECF
No. 25, Aug. 18, 2022.) Tripathy eventually filed the pending motion to
amend. (ECF No. 47, Apr. 26, 2023.) His pending motion to amend again
attempts to add new claims against new defendants.
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Defendants opposed Tripathy’s pending motion to amend.1 (ECF
No. 52, May 5, 2023.) Tripathy filed a reply. (ECF No. 53, May 12, 2023.)
On September 4, 2023, Tripathy moved for expedited consideration of
his motion to amend. (ECF No. 47, Sept. 4, 2023.) I denied that motion
by text order on October 19, 2023. (ECF No. 59.) This report and recom-
mendation followed.
This case is about Tripathy’s exposure to ETS.
This case is about Tripathy’s exposure to cigarette smoke while
incarcerated at Gowanda Correctional Facility. (Am. Compl. at 8 ¶ 2,
ECF No. 3, June 11, 2021.) In the operative amended complaint, Tripa-
thy alleges that he suffered adverse effects from environmental tobacco
smoke (“ETS”) due to lax enforcement of DOCCS’ smoking rules at Gow-
anda. (Id. at 14.)
1 I pause to note that Defendants’ opposition violates Loc. R. Civ.
P. 10(a)(4) (“[D]ocuments must have at least one-inch margins on all
four sides[.]”) (alterations added). This is apparent when comparing the
certificate of service in Defendants’ memorandum of law with the final
page of the body of the memorandum of law. (Def.’s Mem. of Law in
Opp’n at 22–23, ECF No. 52-1, May 5, 2023.) If Defendants needed ad-
ditional pages, they should have asked. Failure to comply with this rule
in the future may result in the rejection of filings. But I do not find it
appropriate to reject the memorandum of law at this point. See Kelly v.
Snap-on, Inc., No. 21-CV-729-LJV, 2023 WL 3579068, at *3 (W.D.N.Y.
May 22, 2023) (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d
Cir. 2001), abrogated on other grounds by Fross v. FBL Fin. Servs., Inc.,
557 U.S. 167 (2009)) (“A district court has broad discretion to determine
whether to overlook a party’s failure to comply with local court rules.”)
(cleaned up).
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Despite a DOCCS policy prohibiting smoking at DOCCS facilities,
Tripathy alleges rampant indoor smoking by inmates and staff. (Am.
Compl. at 14, ECF No. 3.) At Gowanda, for example, Tripathy alleged
his cellmate smoked “over 5 packs of cigarettes per day.” (Id. at 16.) He
alleges that such exposure to ETS has exacerbated his medical condi-
tions, including asthma, pulmonary disease, stress, and high blood pres-
sure. 	(Am. 	Compl. 	at 	21–23, 	ECF 	No. 	3; 	Proposed 	2d 	Am.
Compl. ¶¶ 2(e)–(g), ECF No. 47, Apr. 26, 2023.) Beyond his health prob-
lems, Tripathy alleges that ETS is difficult for him because, as a Hindu,
he must avoid tobacco products and cigarette smoke. (Am. Compl. at 21,
ECF No. 3; Proposed 2d Am. Compl. ¶ 2(c), ECF No. 47.)
Tripathy seeks to add similar claims about ETS against other
DOCCS facilities.
Tripathy seeks to add similar claims to those he brought against
Gowanda against officials at Fishkill and Collins Correctional Facilities.
(Proposed 2d Am. Compl. at 7, ECF No. 47 (listing defendants to be
added).) I will refer to the groups of defendants associated with these
facilities as either the “Fishkill Defendants” or the “Collins Defend-
ants.”2
2 The Fishkill Defendants are: Sharon Frost; Akinola Akinyombo;
and Edward Burnett. (Proposed 2d Am. Compl. at 7, ECF No. 47.) The
Collins Defendants are: Joel L. Terragnoli; Richard Moffit; and Leanne
Latona. (Id.)
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Tripathy alleges the Fishkill and Collins Defendants continued to
expose him to ETS. Like in Gowanda, Tripathy alleges that ETS at Fish-
kill and Collins “got worse … due to constant, relentless[,] and excessive
exposure to Indoors ETS.” (Id. at 12 ¶ 2(f).) Tripathy attributes his wors-
ened health to “excessive ETS.” (Id. ¶ 2(g).) Recall that ETS is difficult
for Tripathy as a “life-long … Hindu.” (Id. at 13 ¶ 2(h).) He is required
to avoid it.
Tripathy files grievances about ETS at Gowanda, but not about
ETS at Fishkill or Collins.
Given his difficulties with ETS, Tripathy states that he completed
the grievance process regarding ETS at Gowanda. (Am. Compl. at 69–
73, ECF No. 3.) But Tripathy states that he “did not file separate griev-
ances at Fishkill and Collins.” (Proposed 2d Am. Compl. at 14 ¶ 2(i), ECF
No. 47.) Instead, “he spoke and wrote to Defendants to ask for relief
which was denied.” (Id.) He does not state to whom he wrote or with
whom he met other than generally claiming he met and wrote to all De-
fendants.
The additional details Tripathy does provide are limited. He adds
that he “met and wrote (sent them copies of his Grievances, letter to
Albany and elected officials) personally to” the Fishkill and Collins De-
fendants. (Id. at 16 ¶ 2(l).) Tripathy notes that he should be able to ob-
tain meeting logs and provides “names, places and instances … where
he 	met 	with 	Defendants 	to 	establish 	timelines, 	events, 	and 	thus
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personal involvement and liability of Defendants.” (Id.) But these are
not currently in his proposed second amended complaint.
Tripathy alleges a substantial burden on his First Amendment
free exercise rights.
Tripathy alleges that all three facilities’ pervasive ETS “left” him
“with no choice,” forcing “him many times to violate his core and sin-
cerely held religious beliefs[.]” (Id. at 15 ¶ 2(j).) I assume Tripathy means
that exposure to ETS amounts to a violation of his sincerely held reli-
gious beliefs as a Hindu.
Tripathy indicates that DOCCS’ burden of providing him an ex-
ception to ETS exposure would have been low: “DOCCS/Defendants
could have easily provided Petitioner with an exception with mini-
mal/zero impact to prison operations, but chose not to[.]” (Id.) And he
alleges not only a direct impact on himself, but an impact on his family
that implicates interstate and foreign commerce:
As a direct result of ETS, and Defendants [sic] denial of any
relief across all [three] facilities where Petitioner was
based, his family and friends had to send him (across state
lines and also from India) extra books, clothing, food, other
items, money[,] etc[.] (to sustain himself), and also make
additional trips to see him, therefore impacting [interstate]
commerce, and commerce between nations.
(Id.) Tripathy adds this allegation specifically to bolster his RLUIPA
claims. Tripathy distinguishes between the Commerce Clause and
Spending Clause bases for RLUIPA.
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Tripathy alleges the personal involvement of the Collins and
Fishkill Defendants, and that they conspired to deprive him of
his rights.
Tripathy alleges that the Collins and Fishkill Defendants “were
personally involved.” (Id. at 16 ¶ 2(m).) He alleges personal involvement
because all these defendants “directly den[ied]” him relief from ETS, yet
“were aware” and “had the direct authority and responsibility to provide
relief.” (Id. at 16–17 ¶ 2(m).) Tripathy also states that the Collins and
Fishkill Defendants “also engaged in conspiracy.” (Id.) Beyond these
general statements, however, he provides no additional detail.
MAGISTRATE JUDGE JURISDICTION
Courts “should freely give leave” to amend “when justice so re-
quires.” Fed. R. Civ. P. 15(a)(2). Still, this Court has discretion to decide
if a motion to amend should be granted. See Zenith Radio Corp. v. Ha-
zeltine Rsch., Inc., 401 U.S. 321, 330 (1971) (citing Foman v. Davis, 371
U.S. 178, 182 (1962)) (“It is settled that the grant of leave to amend the
pleadings pursuant to Rule 15(a) is within the discretion of the trial
court.”). But when I deny a motion to amend as a magistrate judge,
things are trickier.
This is an R&R—not a decision and order—but case law does not
clearly require that I do this.
Courts, including in this District, are a bit all over the map about
whether, as a magistrate judge, I can issue a decision and order when
denying a motion to amend for futility. Compare Antonacci v. KJT Grp.,
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Inc., No. 21-CV-6578L, 2022 WL 1656787, at *2 (W.D.N.Y. May 25,
2022) (holding that where a magistrate judge finds “that amendment
should be denied on the ground of futility” the decision must be by report
and recommendation because this “amounts to a conclusion that the pro-
posed amendment would not withstand a motion to dismiss”); Houghtal-
ing v. Eaton, No. 14-CV-6416-EAW-JFW, 2017 WL 9517690, at *7
(W.D.N.Y. Sept. 29, 2017), adopted, No. 6:14-CV-6416 EAW, 2018 WL
522342 (W.D.N.Y. Jan. 22, 2018) (“Because my findings and conclusions
regarding the futility of plaintiff’s motion to amend the second amended
complaint to add Zmuda as a defendant are case-dispositive with respect
to Zmuda, my determinations are made as part of a Report and Recom-
mendation and not a Decision and Order.”) (collecting cases) with
Thomas v. ConAgra Foods, Inc., No. 6:20-CV-06239-EAW-MJP, 2022
WL 3699408, at *2 (W.D.N.Y. Aug. 26, 2022) (“However, as this Court
has previously recognized, authority in this Circuit supports a conclu-
sion that review of a motion to amend—even the denial of such a mo-
tion—is nondispositive in nature[.]”). “The thinking reflected” in holding
that futility analysis requires a report and recommendation is “that by
declaring a proposed amendment futile, the magistrate judge has effec-
tively engaged in the Rule 12(b)(6)[] analysis and has decided the
amendment fails to state a claim, thus making the decision dispositive.”
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Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006) (footnote
omitted).
True, “[m]otions to dismiss and for summary judgment are clearly
classified as dispositive motions by” 28 U.S.C. § 636(b)(1)(A). HCC, Inc.
v. R H & M Mach. Co., 39 F. Supp. 2d 317, 322 (S.D.N.Y. 1999). But
these motions are qualitatively distinct from motions to amend; they do
“not terminate” the “existing lawsuit,” rather, they only prevent the ad-
dition of defendants or claims. Hall, 469 F.3d at 595; accord Kenny v.
United States, 489 F. App’x 628, 630 (3d Cir. 2012) (noting that “[s]tat-
utory and precedential authority largely rejects” the argument that mo-
tions to amend are dispositive). Motions to amend thus seem to fall
within a magistrate judge’s purview “to hear and determine any pretrial
matter pending before the court[.]” 28 U.S.C. § 636(b)(1)(A). The plain
language of “any pretrial matter” would seem to encompass motions to
amend as they are incident to discovery. Even so, until the Second Cir-
cuit weighs in, or until the Western District achieves uniformity on this
question, I find it appropriate to issue reports and recommendations
when denying motions to amend for futility.
LEGAL STANDARD
Turning to Tripathy’s motion to amend, I can recommend denial
for several reasons. See Foman, 371 U.S. at 182 (noting that leave to
amend may be denied for undue delay, bad faith, dilatory motive, undue
prejudice, or futility). This includes where allowing a plaintiff to amend
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his complaint would be pointless. See Acito v. IMCERA Grp., Inc., 47
F.3d 47, 55 (2d Cir. 1995) (“One good reason to deny leave to amend is
when such leave would be futile.”).
So, I must see if Tripathy’s proposed second amended complaint
plausibly states claims under Rule 12(b)(6). Panther Partners, Inc. v.
Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012). I conclude that
it does not. See Tannerite Sports, LLC v. NBC Universal News Grp., 864
F.3d 236, 252 (2d Cir. 2017) (holding that motions to amend are futile if
they fail to “pass muster under Rule 12(b)(6)”) (internal quotations omit-
ted).
“To survive a motion to dismiss” under Rule 12(b)(6), the “com-
plaint 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.” Id. (citing Twombly, 550 U.S. at
556).
Tripathy’s proposed second amended complaint fails to pass mus-
ter under Rule 12(b)(6). This is true even though I must hold Tripathy’s
complaint “to less stringent standards than formal pleadings drafted by
lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
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Gamble, 429 U.S. 97, 106 (1976)). “It is well-established that the sub-
missions of a pro se litigant must be construed liberally and interpreted
‘to raise the strongest arguments that they suggest.’” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v.
Wright, 459 F.3d 241, 248 (2d Cir. 2006)) (emphasis removed). But I
should recommend dismissal of even a pro se complaint if it lacks “suffi-
cient factual matter … to ‘state a claim to relief that is plausible on its
face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
TRIPATHY’S INCORPORATION OF DOCUMENTS
One final housekeeping matter. Tripathy “plead[s] for the Court
to reference his original complaint, amended complaint, exhibits, vari-
ous motions, letters and responses (all on the record) in the event[]
things may have been missed or not detailed.” (Proposed 2d Am. Compl.
at 10 ¶ 2(a), ECF No. 43.) While I may consider documents attached as
exhibits and incorporated by reference, I reject Tripathy’s free-wheeling
approach. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d
Cir. 2010) (“In considering a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6), a district court may consider the facts alleged
in the complaint, documents attached to the complaint as exhibits, and
documents incorporated by reference in the complaint.”). That said, I
can (and will) consider allegations made for the first time in Tripathy’s
reply papers. See Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013)
(“A district court deciding a motion to dismiss may consider factual
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allegations made by a pro se party in his papers opposing the motion.”).
But I will not consider everything Tripathy has filed. This decision is
long enough as it is. And an amended complaint is meant to take the
place of the operative pleading, not supplement it, or be supplemented
by the pleading the amended complaint is meant to replace.
ELEVENTH AMENDMENT IMMUNITY
Tripathy’s claims against the Fishkill and Collins Defendants in
their official capacities are futile under the Eleventh Amend-
ment.
Tripathy asserts claims against Defendants in their official capac-
ities. He attempts to bring each claim in his proposed second amended
complaint against “[a]ll Defendants (official and individual capacity).”
(Proposed 2d Am. Compl. ¶¶ 1(a)–(f), ¶¶ 3–6, ECF No. 47.) New York
State has not waived sovereign immunity for the claims Tripathy brings.
Tripathy thus cannot sue DOCCS personnel in their official capacities.
Tripathy’s claims against DOCCS personnel in their official capacities
are futile. The Eleventh Amendment prevents these claims, rendering
them futile for purposes of amending his complaint.
The Eleventh Amendment bars lawsuits by citizens against a
state unless the state has waived this immunity. See Seminole Tribe of
Florida v. Florida, 517 U.S. 44, 68 (1996) (“Although a case may arise
under the Constitution and laws of the United States, the judicial power
does not extend to it if the suit is sought to be prosecuted against a State,
without her consent, by one of her own citizens.”). This immunity
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extends to state agencies, like DOCCS, and state agents in their official
capacities. See Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988) (“The
[E]leventh [A]mendment bars recovery against an employee who is sued
in his official capacity[.]”) (alterations added). Tripathy thus cannot
bring claims against such defendants in their official capacities. See
Guarneri v. West, 518 F. Supp. 2d 514, 519 (W.D.N.Y. 2007) (“To the
extent that plaintiff's claims are asserted against defendants in their
official capacities, the claims are barred by the Eleventh Amendment
and must be dismissed. The Eleventh Amendment bars lawsuits by cit-
izens against a state unless the state has waived its sovereign immun-
ity.”) (citation omitted).
Tripathy’s RLUIPA claim fares no better.
While the analysis is somewhat different, Tripathy’s RLUIPA
claim likewise does not escape the Eleventh Amendment. The Supreme
Court held in Sossamon v. Texas that “States, in accepting federal fund-
ing, do not consent to waive their sovereign immunity to private suits
for money damages under RLUIPA because no statute expressly and
unequivocally includes such a waiver.” 563 U.S. 277, 293 (2011). His
RLUIPA claim against the Fishkill and Collins Defendants in their offi-
cial capacities is accordingly futile.
EXCLUSIVE STATE COURT JURISDICTION
“Pursuant to Correction Law § 24, any claim against” a DOCCS
officer under New York law “arising out of any act done or the failure to
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perform any act within the scope of the employment and in the discharge
of the duties’ of said officers ‘shall be brought and maintained in the
court of claims as a claim against the state.’” Crist v. Rosenberger, 219
A.D.3d 569, 570 (2d Dep’t 2023) (quoting Bahadur v. New York State
Dept. of Correctional Servs., 88 A.D.3d 629, 630–31 (2d Dep’t 2011)).
Tripathy’s state law claims are thus futile because this Court lacks ju-
risdiction to hear them. See Davis v. McCready, 283 F. Supp. 3d 108,
123–24 (S.D.N.Y. 2017) (“Courts in the Second Circuit have long held
that Section 24 precludes a plaintiff from raising state law claims in fed-
eral court against state employees in their personal capacities for ac-
tions arising within the scope of their employment.”) (collecting cases).
His remedy for DOCCS’ employee’s conduct “lies in the Court of
Claims against the State of New York, not this Court” Est. of King by &
through King v. Annucci, No. 9:20CV1413 (TJM/ML), 2023 WL 6122868,
at *15 (N.D.N.Y. Sept. 19, 2023). Because of this, Tripathy’s proposed
state law claims are futile. I accordingly report and recommend that
Judge Geraci not permit him to add them to his complaint. Davis, 283
F. Supp. 3d at 124 (“Under Section 24, any tort claim arising under New
York law … must be dismissed for lack of subject matter jurisdiction.”)
(cleaned up); see also Cruz v. New York, 24 F. Supp. 3d 299, 309
(W.D.N.Y. 2014) (“Plaintiff’s state law claims against Defendants … are
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barred because New York Correction Law § 24 shields them from liabil-
ity for state law claims in both state and federal court.”).
EXHAUSTION OF REMEDIES
Despite having no excuse, Tripathy failed to exhaust administra-
tive remedies.
The Prisoner Litigation Reform Act required Tripathy to exhaust
all possible administrative remedies at all possible levels. 42 U.S.C.
§ 1997e(a). I note that this case plainly relates to prisoner life as it con-
cerns prison conditions. See Porter v. Nussle, 534 U.S. 516, 532 (2002)
(holding 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”). Tripathy does not argue otherwise.
Absent another exception, then, Tripathy had “to follow the pre-
scribed three-step grievance procedure set forth at 7 N.Y.C.R.R. § 701.5.”
Johnson v. Annucci, 314 F. Supp. 3d 472, 475 (W.D.N.Y. 2018); Amador
v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (noting that prisoners must
use “all steps that the agency holds out, and do[] so properly”). Yet Trip-
athy admits that he did not file grievances about ETS at Fishkill or Col-
lins. (Mot. to Am. at 14 ¶ 2(i), ECF No. 47 (“Petitioner did not file sepa-
rate grievances at Fishkill CF and Collins CF.”).)
Tripathy did not need to admit this. “[A] prisoner need not specif-
ically plead or demonstrate exhaustion in the complaint because ‘failure
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to exhaust administrative remedies is an affirmative defense under the
PLRA, not a pleading requirement.’” Rucker v. Giffen, 997 F.3d 88, 92
(2d Cir. 2021) (quoting Williams v. Correction Officer Priatno, 829 F.3d,
118, 122 (2d Cir. 2016)). Since he did, however, I recommend dismissal
because “it is apparent from the face of the complaint” that Tripathy
“failed to exhaust administrative remedies.” Allah v. Adams, 573 F.
Supp. 3d 904, 910 (W.D.N.Y. 2021) (quoting Randle v. Alexander, 960 F.
Supp. 2d 457, 483 (S.D.N.Y. 2013)); see also Williams, 829 F.3d at 122
(citation omitted) (same).
Still, sometimes prisoners like Tripathy have an exception to ful-
filling the grievance requirement. See Green Haven Prison Preparative
Meeting v. DOCCS, 16 F.4th 67, 81 (2d Cir. 2021) (quoting Hubbs v. Suf-
folk Cnty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015)) (“The PLRA
requires the exhaustion of remedies only insofar as such remedies are
‘available to the inmate.’”).3 Here, Tripathy argues that pursuing admin-
istrative 	remedies 	would 	be 	futile 	because 	the 	“administrative
3 I have edited this citation for readability. The full citation is as
follows: See Green Haven Prison Preparative Meeting of Religious Soc’y
of Friends v. New York State Dep’t of Corr. & Cmty. Supervision, 16
F.4th 67, 81 (2d Cir. 2021), cert. denied sub nom. Green Haven Prepara-
tive Meeting v. New York State Dep’t of Corr. & Cmty. Supervision, 142
S. Ct. 2676 (2022) (quoting Hubbs v. Suffolk County Sheriff’s Dep’t, 788
F.3d 54, 59 (2d Cir. 2015)) (“The PLRA requires the exhaustion of rem-
edies only insofar as such remedies are ‘available to the inmate.’”).
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20
procedure” here “operate[d] as a simple dead end—with officers unable
or consistently unwilling to provide any relief to aggrieved inmates.”
Ross v. Blake, 578 U.S. 632, 643 (2016). This is referred to as “futility”
of prison grievance procedures.4
Tripathy presents two arguments for futility of prison grievance
procedures. First, he argues that he did not need to exhaust administra-
tive remedies about ETS at Gowanda because the “DOCCS smoking pol-
icy was across all prisons.” (Proposed 2d Am. Compl. ¶ 2(i), ECF No. 47.)
Second, he argues that because he “reached out extensively to all De-
fendants … via letters, meetings and communications of all letters,” he
successfully exhausted his administrative remedies. (Reply at 27, ECF
No. 53.) I dispose of Tripathy’s second argument, then his first.
4 I also note that Tripathy had adequate time to exhaust admin-
istrative remedies. Tripathy presents no argument that he was trans-
ferred before having sufficient time to grieve the conditions at Collins
and Fishkill. Cf. Romano v. Ulrich, 49 F.4th 148, 150 (2d Cir. 2022) (“Ro-
mano’s transfer out of DOCCS custody served as a ‘dead end’ that effec-
tively rendered his administrative remedy unavailable to him.”) (citing
Ross, 578 U.S. at 643). And as I discussed, Tripathy spent several
months at each facility where he was incarcerated. See Tripathy v.
McCloskey, 2021 WL 5771129, at *1. Because it appears that Tripathy
“ha[d] sufficient time to pursue administrative remedies” at Fishkill and
Collins, he is not excused from the exhaustion requirement for not hav-
ing sufficient time to grieve. Flowers v. City of New York (DOCS), 668 F.
Supp. 2d 574, 578 (S.D.N.Y. 2009) (citing Berry v. Kerik, 366 F.3d 85,
86–88 (2d Cir. 2004)).
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21
Tripathy’s letters to DOCCS personnel do not suffice for exhaus-
tion.
Speaking and writing to the Fishkill and Collins Defendants is
not enough for Tripathy to exhaust administrative remedies. See, e.g.,
Girard v. Chuttey, 826 F. App’x 41, 45 (2d Cir. 2020) (citing Woodford v.
Ngo, 548 U.S. 81, 90 (2006)) (holding that “letters to prison officials did
not constitute exhaustion” because “they did not conform to the agency’s
grievance procedures”). A prisoner cannot satisfy the PLRA exhaustion
requirement through “enough informal steps” such as letters and com-
munications. Dabney v. Pegano, 604 F. App’x 1, 5 (2d Cir. 2015) (quoting
Macias v. Zenk, 495 F.3d 37, 44 (2d Cir. 2007)). So, no matter how many
letters Tripathy wrote, or how many times he “raised the issue,” as he
puts it, such communications do not satisfy the PLRA’s exhaustion re-
quirement. See Collins v. Goodliff, No. 12-CV-6595-FPG, 2014 WL
6065670, at *2 (W.D.N.Y. Nov. 13, 2014) (“Numerous courts considering
th[e] issue have found that complaints that were not filed as formal
grievances 	cannot 	satisfy 	the 	exhaustion 	requirement.”) 	(collecting
cases).
Tripathy still needed to exhaust administrative remedies about
enforcement of DOCCS’ ETS policy at Fishkill and Collins.
Prisoners are likewise exempt from the exhaustion requirement
when administrative remedies are “unavailable.” Ross, 578 U.S. at 643.
Tripathy argues that DOCCS’ grievance procedure was unavailable be-
cause it amounted to “a simple dead end—with officers unable or
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22
consistently unwilling to provide any relief to aggrieved inmates.” Wil-
liams, 829 F.3d at 123.
Statewide and facility-specific ETS policies do not render
administrative remedies unavailable. The Second Circuit has noted
that where a policy “is outside the control of the jail” or facility, it may
not be grievable. Saeli v. Chautauqua Cnty., NY, 36 F.4th 445, 457 (2d
Cir. 2022); see also id. at 458 (“Thus, if the jail captain did not have the
authority to change the handcuffing policy—the sole subject of the claim
against the County—then that claim was not grievable.”). This was true
in another case of Tripathy’s. See Tripathy v. McCloskey, 2021 WL
5771129, at *1 n.2 (noting that a DOCCS official “stated in her declara-
tion that the DOCCS menu is the same statewide and cannot be altered
for a single facility”). There, the Court assumed that such policies “are
equally applicable to conditions at Fishkill and Collins.” Id.
But unlike Tripathy v. McCloskey or Saeli, any DOCCS’ ETS pol-
icy is not outside of the control of each facility. Even if Tripathy is correct
that DOCCS has a statewide ETS policy, it would make no difference.
This case is not about a policy violating Tripathy’s rights that is outside
the control of the Fishkill and Collins Defendants like a DOCCS-man-
dated menu and methods for preparing food, as was true in McCloskey,
or a method of handcuffing, as in Saeli. This case is about Tripathy’s
belief that the Fishkill and Collins Defendants failed to enforce a policy
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23
of smoke-free prison living environments that was theirs to enforce.
(Am. Compl. at 83,5 Ex. O, ECF No. 3, June 11, 2021 (“Ultimately only
outdoor smoking will be permitted.”); id. at 74, Ex. K (“CORC asserts
that indoor smoking is prohibited under the state’s Clean Indoor Act[.]”);
id. at 91, Ex. O (noting that policy would be fully in force by June 30,
2001).) Failure to enforce the Clean Air Act or any policy flowing from it
is grievable because the Fishkill or Collins Defendants could remedy
Tripathy’s grievance, unlike in McCloskey or Saeli where the policy was
out of the correctional facility’s control.
Second, as Defendants correctly point out, each correctional facil-
ity appears to have a separate ETS policy that it must enforce. (Id. at
78, Ex. M.) Tripathy’s grievance concerning ETS at Gowanda was re-
jected in part because “the facility administration prohibits smoking in
any facility building.” (Id. at 74, Ex. K.)
In sum, Tripathy should have at least attempted to grieve each
facility’s enforcement of applicable ETS policies, assuming the facilities
here did fail to comply with DOCCS’ ETS policies or their own. See Ward
v. LeClaire, No. 07-CV-6145 MAT, 2013 WL 178139, at *4–5 (W.D.N.Y.
Jan. 16, 2013) (“Defendants have adduced sufficient evidence to estab-
lish that [the correctional facilities each] had a functioning grievance
5 I am using the page numbers provided by CM/ECF rather than
those Tripathy handwrote onto the amended complaint.
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24
system during the relevant time period that was, in fact, available to
Plaintiff.”). Because Tripathy failed to do so, I report and recommend
that his federal claims be found futile.
The PLRA’s purpose supports my conclusion. I find yet more
support for this conclusion in the purpose of the PLRA. Congress in-
tended the PLRA to allow “a prison to address complaints about the pro-
gram” or policy “it administers before being subjected to suit[.]” Barbaro
v. U.S. ex rel. Fed. Bureau of Prisons FCI Otisville, 521 F. Supp. 2d 276,
282 (S.D.N.Y. 2007) (quoting Jones v. Bock, 549 U.S. 199, 219 (2007)).
So, here, “the fundamental purposes of the grievance requirement would
not be served if a grievance filed at one facility regarding treatment ob-
tained at that facility was said to be sufficient to exhaust administrative
remedies relating to a separate, even though similar, claim asserted
against different medical personnel.” Tafari v. Stein, No. 01CV0841,
2008 WL 3852150, at *2 (W.D.N.Y. Aug. 15, 2008). I find that Tripathy
needed to exhaust administrative remedies separately at Fishkill and
Collins.
Finally, my finding falls well within other purposes of the PLRA.
See Woodford 548 U.S. at 95 (“The benefits of exhaustion can be realized
only if the prison grievance system is given a fair opportunity to consider
the grievance. The prison grievance system will not have such an oppor-
tunity unless the grievant complies with the system’s critical procedural
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25
rules.”). Tripathy’s federal claims are thus futile because he failed to ex-
haust them.
THE RLUIPA CLAIM
The proposed amended complaint includes a claim under the Re-
ligious Land Use and Institutionalized Persons Act, or “RLUIPA,”6 for
short. (Proposed 2d Am. Compl. at 21–34 ¶¶ 4(a)–(i), ECF No. 47.) I al-
ready recommended that Judge Geraci reject Tripathy’s RLUIPA claim
for failure to exhaust administrative remedies. See Green Haven Prison
Preparative Meeting, 16 F.4th at 82 (“Here, the Incarcerated Plaintiffs
provide no evidence that a grievance asserting that a prisoner’s religious
liberty has been violated … Plaintiffs are thus unable to avoid the ex-
haustion requirement[.]”).
“Under RLUIPA, a plaintiff must demonstrate that the state has
imposed a substantial burden on the exercise of his religion; however,
the state may overcome a RLUIPA claim by demonstrating that the
challenged policy or action furthered a compelling governmental inter-
est and was the least restrictive means of furthering that interest.” Redd
v. Wright, 597 F.3d 532, 536 (2d Cir. 2010) (discussing 42 U.S.C.
6 42 U.S.C. § 2000cc et seq.
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§ 2000cc-1(a)). RLUIPA plaintiffs—as the acronym suggests—can in-
clude prisoners like Tripathy.
RLUIPA protects prisoners like Tripathy from a “government”
imposing a substantial burden on their religious exercise. 42 U.S.C.
§ 2000cc-1(a). “Government,” under RLUIPA, means any “State, county,
municipality, or other governmental entity created under the authority
of a State[,]” along with subdivisions thereof—and even those “acting
under color of State law[.]” 42 U.S.C. §§ 2000cc-5(4)(A)(i)–(iii).
RLUIPA applies in two instances. First, RLUIPA applies if “the
substantial burden is imposed in a program or activity that receive[s]
Federal” funding. Id. § 2000cc-1(b)(1). Alternatively, it applies if “the
substantial burden affects, or removal of that substantial burden would
affect” interstate commerce. Id. § 2000cc-1(b)(2). Prisoners so affected
may obtain “appropriate relief against a government.”7 Id. § 2000cc-2(a).
These twin “source[s] of federal power to enact a law” are, in the
words of the Sixth Circuit, “a form of insurance[.]” Haight v. Thompson,
7 To the extent Tripathy seeks injunctive-style relief, his claim is
moot. Only a “person residing in or confined to an institution” may bring
a RLUIPA claim. 42 U.S.C. § 2000cc-1(a). Tripathy is currently released.
I therefore find that his RLUIPA claim—insofar as it seeks injunctive-
style or declaratory relief—is moot. See Green Haven Prison Preparative
Meeting, 16 F.4th at 83 (noting that “the Non-Incarcerated Plaintiffs
make no claims under RLUIPA, nor [could] they”). I analyze only his
money damages claims under RLUIPA.
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27
763 F.3d 554, 569 (6th Cir. 2014). Courts generally analyze RLUIPA’s
Spending Clause basis, being that plaintiffs only raise that basis of fed-
eral power. See, e.g., Sossamon v. Texas, 563 U.S. 277, 289–91 (2011).
(rejecting RLUIPA Spending Clause argument without addressing Com-
merce Clause basis).
But Tripathy raises the prospect of both the Commerce Clause
basis and the Spending Power basis.
Controlling Second Circuit precedent only rejects RLUIPA mon-
etary damages under the Spending Clause.
“RLUIPA 	does 	not 	authorize 	claims 	for 	monetary 	damages
against state officers in either their official or individual capacities.”
Holland v. Goord, 758 F.3d 215, 224 (2d Cir. 2014) (citing Washington,
731 F.3d at 145–46). While courts in this circuit have often quoted this
language to reject RLUIPA claims, in so doing, they leave out something
critical.
Congress 	undoubtedly 	enacted 	RLUIPA 	under 	its 	spending
power. Washington, 731 F.3d at 145–46. But, as discussed, Congress
likewise used (or attempted to use) its commerce power when enacting
RLUIPA. Id. at 146 (citing 42 U.S.C. § 2000cc-1(b)) (“We note that Con-
gress invoked its power to regulate interstate and foreign commerce as
an alternative basis for enforcing section 3 of RLUIPA.”). And in Wash-
ington, the Second Circuit declined to address the Commerce Clause ba-
sis for RLUIPA, leaving the commerce clause basis for another day:
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28
The commerce clause basis for RLUIPA is therefore not
properly before the Court, and we decline to decide whether
RLUIPA authorizes individual-capacity suits under the
imprimatur of the commerce clause.
Id. The Second Circuit explained its holding by stating that the prisoner
“pled no facts indicating that the restriction of his religious rights had
any effect on interstate or foreign commerce.” Id. Thus, Tripathy may
not recover under the Spending Clause—unless he raises a Commerce
Clause basis for his claim.
Not recognizing the commerce power basis, the Fishkill and Col-
lins Defendants cite Holland for the proposition that Tripathy cannot
recover any monetary damages under RLUIPA. But Holland expressly
relies on Washington for that proposition. And the Second Circuit’s hold-
ing in Washington was expressly limited to RLUIPA’s Spending Clause
basis.8 I therefore turn next to the question of whether Tripathy may
8 Tripathy spills much ink arguing that the Supreme Court’s de-
cision in Tanzin v. Tanvir, 592 U.S. 43 (2020) renders Washington v.
Gonyea bad law. He argues I should not even consider Washington, or
that this Court should certify an appeal for the Second Circuit to con-
sider the issue. I reject Tripathy’s invitation.
In Tanzin, the Supreme Court held that the Religious Freedom
Restoration Act (RFRA) permits litigants “to obtain money damages
against federal officials in their individual capacities.” Id. at 52 (2020).
Granted, RFRA and RLUIPA have similar language. But the very prem-
ise on which Tripathy’s claim rests, Congress’s spending power, undoes
his argument about Tanzin v. Tanvir:
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29
raise a claim for monetary damages under RLUIPA under the Com-
merce Clause.
Tripathy fails to demonstrate that Defendants’ actions had an
impact on interstate commerce.
As stated, RLUIPA applies if “the substantial burden” on Tripa-
thy’s free exercise “affects, or removal of that substantial burden would
affect,” interstate commerce. 42 U.S.C. § 2000cc-1(b). Tripathy must
plausibly allege that Defendants’ substantial burden imposed on him,
ETS, affects (or its removal would affect) interstate commerce. He does
not.
RLUIPA was enacted pursuant to Congress’s powers under
the Spending Clause, thereby allowing Congress to impose
certain conditions, such as civil liability, on the recipients
of federal funds, such as state prison institutions. Because
state officials are not direct recipients of the federal funds,
and thus would have no notice of the conditions imposed on
them, 	they 	cannot 	be 	held 	individually 	liable 	under
RLUIPA.
Mack v. Warden Loretto FCI, 839 F.3d 286, 303 (3d Cir. 2016)
(emphasis added); accord Landor v. Louisiana Dep’t of Corr. & Pub.
Safety, 82 F.4th 337, 344 (5th Cir. 2023) (same). Unlike RLUIPA, Con-
gress enacted RFRA under its Fourteenth Amendment powers. See Holt
v. Hobbs, 574 U.S. 352, 257 (2015) (noting RFRA’s basis in the Four-
teenth Amendment and RLUIPA’s basis in the Spending and Commerce
Clauses); see also Landor, 82 F.4th at 344 (“Section 5 of the Fourteenth
Amendment and the Spending Clause do not empower Congress to the
same degree, and Tanzin does nothing to fill that gap.”).
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30
I see no nexus between ETS, Defendants’ actions or inactions and
the purported effect on interstate commerce. Instead, the only reasona-
ble inference here is that the interstate commerce to which Tripathy
points would have occurred even if the DOCCS facilities in which he was
imprisoned had no ETS. Or, put another way, Tripathy simply alleges
that interstate commerce happened, such commerce involved him, and
it occurred around the time he allegedly suffered ETS’ negative effects.
See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556) (“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.’”). 	That 	is 	a 	pleading 	failure, 	rendering 	his
RLUIPA claim—insofar as it is based on the Commerce Clause—futile.
Tripathy states that “his family and friends had to send him
(across state lines and also from India) extra books, clothing, food, other
items, money[,] etc[.]” (Proposed 2d Am. Compl. at 15 ¶ 2(j).) But the
complaint 	does 	not 	tell 	us 	why 	Defendants’ 	conduct 	around 	ETS
prompted this. Perhaps if friends and family had tried to send him sur-
gical masks to protect him from ETS to which he was allegedly exposed,
a commerce nexus would arise. But as pled, I see no relationship be-
tween the commerce involving Tripathy and ETS or the Fishkill and
Collins Defendants. Without such a nexus, his complaint fails to provide
an 	“allegation 	that 	the 	defendants’ 	actions 	affected 	interstate
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31
commerce[.]” Brown v. Ray, 695 F. Supp. 2d 292, 298 (W.D. Va. 2010).
Remember, the Fishkill and Collins Defendants’ actions in placing a
substantial burden on Tripathy’s free exercise must affect commerce for
Tripathy to plead a RLUIPA claim. Because Tripathy fails to plead a
connection between their actions and commerce, Tripathy’s RLUIPA
claim fails.
Even if Tripathy had successfully alleged an interstate commerce
nexus here, I would still recommend that his RLUIPA claim be rejected
on Commerce Clause grounds because RLUIPA does not clearly provide
monetary damages. “If Congress intends to alter the usual constitu-
tional balance between the States and the Federal Government, it must
make its intention to do so unmistakably clear in the language of the
statute.” Haight 763 F.3d at 569; see also id. at 569–70 (holding that
money damages cannot be recovered under RLUIPA because the law
fails to meet the “clear-statement rule”). RLUIPA is not unmistakably
clear in delineating what falls within the phrase “appropriate relief.”
And 	so, 	numerous 	courts 	have 	rejected 	monetary 	damages 	under
RLUIPA outright, notwithstanding the twin exercises of Federal juris-
diction. Id. at 570 (“Every circuit to consider the question … has held
that RLUIPA does not permit money damages against state prison offi-
cials, even when the lawsuit targets the defendants in their individual
capacities.”); accord Walker v. Baldwin, 74 F.4th 878, 883–84 (7th Cir.
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32
2023) (collecting cases). And, as noted, Tripathy cannot obtain injunc-
tive-style relief under RLUIPA.
For these reasons, Tripathy’s RLUIPA claim, as pled, is futile. I
report and recommend that Judge Geraci reject it as such.
SECTION 1983 & SECTION 1985 CLAIMS
Tripathy’s claims under Sections 1983 and 1985 are likewise fu-
tile for several independent reasons. These claims include Section 1983
and 1985 conspiracy, in addition to a garden variety Section 1983 claim.
First, Tripathy fails to state a claim for Section 1983 and 1985
conspiracy because he fails to plead an underlying constitutional viola-
tion. Second, his conspiracy claims also fail because they are based on
conclusory allegations. Third, even if Tripathy adequately pled the con-
spiracy claims, both of his conspiracy claims are barred by the intracor-
porate conspiracy doctrine. Finally, Tripathy fails to state any Section
1983 claims—either deliberate indifference or conspiracy—because he
fails to plead personal involvement.
Tripathy fails to state a conspiracy claim under either Sections
1983 or 1985 because he inadequately alleges an underlying con-
stitutional violation and makes conclusory allegations.
Tripathy does not demonstrate that Defendants intentionally and
purposefully violated his rights, and therefore fails to plead the under-
lying constitutional rights violation required to state a conspiracy claim.
Separately, his conspiracy allegations fail for being conclusory.
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33
Legal Standard. Both Section 1983 and 1985 conspiracy claims
“require[] a plaintiff to plead a violation of a constitutional right.” Rich-
ard v. Fischer, 38 F. Supp. 3d 340, 352 (W.D.N.Y. 2014) (discussing the
requirement in the Section 1985 context); see also McCloud v. Prack, 55
F. Supp. 3d 478, 482–83 (W.D.N.Y. 2014) (collecting cases in the Section
1983 context). A plaintiff’s allegations must show “an intentional and
purposeful deprivation of constitutional rights.” Masri v. Thorsen, No.
17-CV-4094 (KMK), 2020 WL 1489799, at *9 (S.D.N.Y. Mar. 27, 2020).
Accordingly, “complaints containing only conclusory, vague, or general
allegations that the defendants have engaged in a conspiracy to deprive
the plaintiff of his constitutional rights are properly dismissed; diffuse
and expansive allegations are insufficient, unless amplified by specific
instances of misconduct.” Udechukwu v. City of New York, 333 F. Supp.
3d 161, 169 (E.D.N.Y. 2018) (quoting Ciambriello v. Cty. of Nassau, 292
F.3d 307, 325 (2d Cir. 2002)) (Section 1983 conspiracy claim); see also
Little v. City of New York, 487 F. Supp. 2d 426, 441 (S.D.N.Y. 2007) (Sec-
tion 1985 claim).
Tripathy inadequately pleads that the Fishkill and Collins
Defendants engaged in a Section 1983 conspiracy. To state a claim
for conspiracy under 42 U.S.C. § 1983, “a plaintiff must allege ‘(1) an
agreement between a state actor and a private party; (2) to act in concert
to inflict an unconstitutional injury; and (3) an overt act done in
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34
furtherance of that goal causing damages.’” Tripathy v. Brotz, 2023 WL
4032831, at *10 (quoting Ciambriello, 292 F.3d at 324–25). The plaintiff
“must allege ‘specific instances of misconduct.’” Id. (quoting Ciambriello,
292 F.3d at 325); Ocasio v. City of Canandaigua, 513 F. Supp. 3d 310,
323 (W.D.N.Y. 2021) (explaining that plaintiffs must provide “some de-
tails of time and place and the alleged effects of the conspiracy”) (citation
omitted).
Here, Tripathy fails to allege specific instances of misconduct, in-
cluding the time and place that the instances occurred. He vaguely al-
leges that “Defendants at each facility met as a group, conferred, dis-
cussed but denied relief.” (Proposed 2d Am. Compl. at 17 ¶ 2(m), ECF
No. 47, April 26, 2023.) He also repeats the same general allegation
three times: “Defendants … individually and collectively conferred with
DOCCS Officials in Albany, and met with Petitioner on multiple occa-
sions to deny relief.” (Id. at 35–36 ¶ 5(b), (c), (d).) While Tripathy did not
need to list and summarize Defendants’ conversations, his repeated gen-
eral allegations lack specific facts tending to show an agreement and
concerted action between Defendants to violate his constitutional rights.
See Tripathy v. Brotz, 2023 WL 4032831, at *11. Because Tripathy does
not allege facts showing that Defendants purposefully and intentionally
acted in concert to violate his constitutional rights, he fails to adequately
allege elements (1) and (2) of a Section 1983 conspiracy claim.
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35
Tripathy inadequately pleads that the Fishkill and Collins
Defendants engaged in a Section 1985 conspiracy. To state a claim
for conspiracy under 42 U.S.C. § 1985(3), a plaintiff must allege: “(1) a
conspiracy; (2) for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; and (3) an act in fur-
therance of the conspiracy; (4) whereby a person is either injured in his
person or property or deprived of any right or privilege of a citizen of the
United States.” Tripathy v. Brotz, 2023 WL 4032831, at *10 (quoting
Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015)). The plaintiff must
allege the conspiracy was “motivated by some racial or perhaps other-
wise class-based, invidious discriminatory animus.’” Id. (quoting Cine
SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 791 (2d Cir. 2007)). “The
Second Circuit has ‘defined ‘class-based animus’ to include discrimina-
tion based on religion.’” Masri, 2020 WL 1489799, at *7 (quoting Jews
for Jesus, Inc. v. Jewish Cmty. Rels. Council, of N.Y., Inc., 968 F.2d 286,
291 (2d Cir. 1992)) (collecting cases). A plaintiff must plead “particular-
ized facts” showing religion-based animus. See id. at *8 (collecting
cases).
Although Tripathy adequately alleges religion-based animus by
stating Defendants “ridiculed” his Hindu beliefs, (Proposed 2d Am.
Compl. at 35–36 ¶ 5(b), (c), (d), ECF No. 47), animus alone does not show
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36
a rights violation, absent particularized facts. On top of animus, Tripa-
thy must allege that Defendants intentionally acted, “at least in part,”
for the purpose of violating his rights. See Masri, 2020 WL 1489799, at
*9. Alleging that Defendants were merely “aware of a deprivation of the
right” is insufficient. Id. at *9. Tripathy alleges Defendants denied his
accommodations request because of prison smoking policies—not be-
cause of his religious beliefs. (Proposed 2d Am. Compl. at 17 ¶ 2(m), ECF
No. 47.) His allegation that Defendants denied his request for accommo-
dations “despite knowing” about his religious beliefs is insufficient. Trip-
athy thus fails to allege element (2) of a Section 1985(3) conspiracy, Trip-
athy v. Brotz, 2023 WL 4032831, at *11,9 and “has not sufficiently al-
leged that Defendants acted with discriminatory animus in seeking to
deprive him of any constitutional right,” Masri, 2020 WL 1489799, at
*10 (emphasis added).
Separately, Tripathy’s conspiracy allegations are conclu-
sory. The Second Circuit has consistently held that conclusory allega-
tions are insufficient to bring a conspiracy claim past the pleading stage.
9 The relevant selection from this citation is as follows: “A conspiracy
claim under Section 1985(3) requires a plaintiff to allege: ‘1) a conspiracy; 2)
for the purpose of depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal privileges and immuni-
ties under the laws; and 3) an act in furtherance of the conspiracy; 4) whereby
a person is either injured in his person or property or deprived of any right or
privilege of a citizen of the United States.’ Dolan v. Connolly, 794 F.3d 290, 296
(2d Cir. 2015) (quoting Britt v. Garcia, 457 F.3d 264, 269 n. 4 (2d Cir.2006)).”
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See Udechukwu, 333 F. Supp. 3d at 169 (Section 1983 conspiracy claim);
Little, 487 F. Supp. 2d at 441 (Section 1985 conspiracy claim). A plain-
tiff’s conclusion that a conspiracy occurred based on conclusory allega-
tions is wholly inadequate to state a plausible claim for relief. See Iqbal,
556 U.S. at 678; Twombly, 550 U.S. at 570.
Here, Tripathy only offers conclusory allegations to support his
conspiracy claims. (Proposed 2d Am. Compl. at 35–36 ¶¶ 5(c), (d), ECF
No. 47 (stating that “because Petitioner is [a] Hindu,” Defendants denied
him a religious housing accommodation.)) Even taking as true Tripa-
thy’s allegation that Defendants denied him “smoke-free accommoda-
tions,” (id. at 35–36 ¶¶ 5(b), (c), (d)), that alone neither shows a conspir-
atorial agreement to violate his constitutional rights nor overt acts in
furtherance of an agreement. Based on his conclusory allegations, Trip-
athy concludes, “Clearly, Defendants … indulged in a conspiracy[.]” (Id.
at 37 ¶ 5(e).) These conclusory allegations are inadequate to state a con-
spiracy claim. Tripathy fails to provide particular facts showing a con-
spiracy. Tripathy’s Section 1983 and 1985 conspiracy claims thus fail for
being pled in a conclusory manner.
Even if Tripathy adequately pled his conspiracy claims, both are
barred by the intracorporate conspiracy doctrine.
Legal Standard. “The intracorporate conspiracy doctrine bars
conspiracy claims against employees of entities such as [DOCCS] (when
those employees are alleged to have conspired solely with each other)
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38
unless, pursuant to the [personal interest] exception, the employees
were pursuing personal interests wholly separate and apart from the
entity by whom they were employed.” Fischer, 38 F. Supp. 3d at 353
(alterations added and citation omitted). “Courts in the Western District
of New York apply the intracorporate conspiracy doctrine to bar in-
mates’ conspiracy claims against DOCCS.” Id. (collecting cases); see also
Richard v. Dignean, 126 F. Supp. 3d 334, 339 (W.D.N.Y. 2015) (same).
To adequately plead the personal interest exception, a plaintiff must al-
lege “that the individuals were pursuing personal interests wholly sep-
arate and apart from the entity,” accordingly, “more is required of a
plaintiff than simply alleging that the defendants were motivated by
personal bias against the plaintiff.” Vega v. Artus, 610 F. Supp. 2d 185,
205 (N.D.N.Y. 2009) (citation omitted).
Tripathy fails to plead the personal interest exception.
Given his pro se status, I construe Tripathy’s pleadings liberally.
Fischer, 38 F. Supp. 3d at 350 (citing Green v. United States, 260 F.3d
78, 83 (2d Cir.2001)). Tripathy seems to argue that the personal interest
exception “applies” because “Defendants … directly and personally ben-
efitted from denial of relief.” (Reply at 19, ECF No. 53.) He alleges that
Defendants received “extra bonus[es], promotions, and other benefits.”
(Id. (alteration added).) I construe this as an attempt to plead the per-
sonal interest exception to the intracorporate conspiracy doctrine.
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39
Here, Tripathy fails to allege that DOCCS employees personally
benefited “at the time of the events alleged[.]” See Borrello v. N.Y. State
Dep't of Corr. Servs., No. 00–CV–177A, 2004 WL 2191565, at *2
(W.D.N.Y. Sept. 27, 2004) (denying a “motion to amend the complaint to
reallege the conspiracy claim” since the plaintiff’s amended allegations
all pertained to defendants who “are or were” DOCCS employees at the
time of the events alleged). While Tripathy’s allegations that Defend-
ants “ridiculed” his religious beliefs may demonstrate a personal bias,
he has not adequately alleged that they were pursuing personal inter-
ests “wholly separate and apart” from their scope of employment with
DOCCS in denying him smoke-free accommodations. (Proposed 2d Am.
Compl. at 35–36 ¶¶ 5(b), (c), (d), ECF No. 47.) In fact, Tripathy concedes
that DOCCS personnel were not pursuing their own interests, but ap-
pear to have been enforcing DOCCS policy, even if it was not perfectly
enforced. (Id. at 17 ¶ 2(m) (“Policy [sic] was DOCCS-wide, across facili-
ties, so [Defendants] were unwilling to change it and provide excep-
tions … [to] the smoking policy.”) (alterations added).)
Because Tripathy fails to adequately allege the personal interest
exception, both his Section 1983 and 1985 conspiracy claims are barred
by the intracorporate conspiracy doctrine.
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40
Separately, Tripathy fails to allege any Section 1983 claims for
failure to plead personal involvement.
Tripathy attempts to allege two Section 1983 claims: (1) deliber-
ate indifference; and (2) conspiracy. Both claims fail because Tripathy
fails to plead the personal involvement of individual Defendants, as re-
quired to recover damages under 42 U.S.C. § 1983.
Legal standard. “To state a valid 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 itself creates no substantive rights; it provides only a pro-
cedure 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 a government official under 42
U.S.C. § 1983, a plaintiff must plead personal involvement. Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of
Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)) (“It is well settled in this
Circuit that ‘personal involvement of defendants in alleged constitu-
tional deprivations is a prerequisite to an award of damages under
§ 1983.’”). Pleading liability under the theory of respondeat superior is
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41
insufficient. Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). In-
stead, “a plaintiff must plead and prove that ‘each Government-official
defendant, through the official’s own individual actions, has violated the
Constitution.’” Tangreti v. Bachmann, 983 F.3d 609, 612 (2d Cir. 2020)
(quoting Iqbal, 556 U.S. at 676). Personal involvement means “direct
participation, or failure to remedy the alleged wrong after learning of it,
or creation of a policy or custom under which unconstitutional practices
occurred, or gross negligence in managing subordinates.” Black v.
Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).
Tripathy fails to state a Section 1983 conspiracy because
he does not allege personal involvement of DOCCS personnel.
Tripathy’s Section 1983 conspiracy claim fails because he inadequately
alleges personal involvement. Tripathy does not allege that any named
Defendants were involved in a conspiracy to violate his rights but that
“Defendants” all “individually” conspired with “DOCCS Officials in Al-
bany.” (Proposed 2d Am. Compl. at 35–37, ¶ 5(b), (c), (d), ECF No. 47.)
Because Tripathy inadequately alleges personal involvement by gener-
ally referring to the actions of “Defendants,” he fails to state a Section
1983 conspiracy claim. See Fischer, 38 F. Supp. 3d at 356 (personal in-
volvement was inadequately pled with respect to some defendants when
the plaintiff failed to name them in his allegations); Hernandez v. Goord,
312 F. Supp. 2d 537, 547 (S.D.N.Y. 2004) (personal involvement was
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42
inadequately pled when the plaintiff did not mention the defendant’s
name “at all in the body of the complaint” except in his “list of defend-
ants”).
Likewise, Tripathy fails to state a Section 1983 deliberate
indifference claim for failure to allege personal involvement.
Although Tripathy makes some adequate allegations to plead a deliber-
ate indifference claim, his claim ultimately fails because he inade-
quately alleges personal involvement.
As with Tripathy’s Section 1983 conspiracy claim, his deliberate
indifference claim ultimately fails for failure plead personal involve-
ment. Nonetheless, to plead personal involvement, a prisoner must al-
lege that a named defendant individually caused a violation of Section
1983. See, e.g., Tangreti, 983 F.3d at 619 (“Tangreti must therefore es-
tablish that Bachmann violated the Eighth Amendment by Bachmann’s
own conduct, not by reason of Bachmann’s supervision of others who
committed the violation.”).
In this case, Tripathy does not name any individual Defendants
to support his claim. Instead, he vaguely alleges that he “met and wrote”
to Defendants “personally” at all three facilities and that therefore his
complaint shows “personal involvement and liability of Defendants.”
(Proposed 2d Am. Compl. at 16, ¶ 2(l), ECF No. 47.). These allegations
are wholly inadequate. Tripathy must allege that named defendants
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43
were individually informed about the severity and duration of his ETS
exposure and that they knew of and disregarded an excessive risk to his
health. Reid, 2022 WL 1164524, at *10. Even if Tripathy had named the
Defendants to whom he wrote, sending letters and grievances to DOCCS
personnel does not render them personally involved. See, e.g., Mateo v.
Fischer, 682 F. Supp. 2d 423, 431 (S.D.N.Y. 2010) (a detailed response
to an inmate’s letter might suggest that the recipient has personal in-
volvement, while a pro forma response does not); Warren v. Goord, 476
F. Supp. 2d 407, 413 (S.D.N.Y. 2007) (denial of a grievance not enough
to show personal involvement). Accordingly, Tripathy’s general refer-
ences to “Defendants” do not show personal involvement and he fails to
plead a Section 1983 deliberate indifference claim.
Tripathy fails to plead the subjective component of deliberate in-
difference.
To 	plead a deliberate 	indifference 	claim alleging an 	Eighth
Amendment violation, the plaintiff must allege that prison officials
“have, with deliberate indifference, exposed him to levels of ETS that
pose an unreasonable risk of serious damage to his future health.” Scott
v. Hollins, No. 96-CV-0351C, 2006 WL 1994757, at *4 (W.D.N.Y. July
14, 2006) (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)).
“The deliberate indifference standard has an objective and a sub-
jective component.” Id. Objectively, a plaintiff must show that he was
“incarcerated under conditions posing a substantial risk of serious
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44
harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). In the context of
an ETS claim, the plaintiff must show that he has been exposed to “un-
reasonably high levels of ETS.” Helling, 509 U.S. at 35. “The objective
factor not only embraces the scientific and statistical inquiry into the
harm caused by ETS, but also ‘whether society considers the risk … to
be so grave that it violates contemporary standards of decency to expose
anyone unwillingly to such a risk.’” Warren v. Keane, 196 F.3d 330, 333
(2d Cir.1999) (quoting Helling, 509 U.S. at 36).
Subjectively, a plaintiff must show more than a prison official’s
inadvertence or negligence. Farmer, 511 U.S. at 835; Davidson v. Can-
non, 474 U.S. 344, 348–49 (1986). A plaintiff must allege that “the offi-
cial 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.” Farmer, 511 U.S. at 837 (emphasis added).
Moreover, the “adoption of the smoking policy … will bear heavily on the
[subjective] inquiry into deliberate indifference.” Helling, 509 U.S. at 36
(1993) (alteration added). But “Helling does not mandate smoke-free
prisons.” Davidson v. Desai, No. 03-CV-121S, 2019 WL 125999, at *32
(W.D.N.Y. Jan. 8, 2019), aff’d, 964 F.3d 122 (2d Cir. 2020) (collecting
cases). “As long as reasonable efforts are made, ‘imperfect enforcement
of a non-smoking policy alone may not support a finding of deliberate
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45
indifference.’” Klein v. Fischer, No. 9:13-CV-0437 BKS/TWD, 2015 U.S.
Dist. LEXIS 117764, 2015 WL 5174031, at *24 (N.D.N.Y. Sept. 2, 2015)
(District 	Judge’s 	order 	that 	includes 	report 	and 	recommendation)
(cleaned up); Davidson, 2019 WL 125999, at *32 (“Elimination of smok-
ing in its entirety, however, is not required...”); Eldridge v. Williams, No.
10 CIV. 0423 LTS, 2013 WL 4005499, at *12 (S.D.N.Y. July 30, 2013)
(“[M]ere imperfect enforcement of an indoor smoking ban in a prison, as
long as reasonable enforcement efforts are made, does not amount to
deliberate indifference.”).
Here, I find that Tripathy inadequately alleges the subjective
component. Far from alleging actual knowledge and disregard to an un-
reasonable health risk, Tripathy alleges that he “met” with “Defend-
ants” and “wrote” them grievances about his ETS exposure. (Proposed
2d Am. Compl. ¶¶ 2(i), (l), ECF No. 47.) Filing grievances is inadequate
to show Defendants acted with a culpable state of mind. See Reid, 2022
WL 1164524, at *10. Neither does Tripathy’s “own belief” that his re-
quested accommodations were “appropriate” adequately show that De-
fendants unreasonably enforced their smoking policy in disregard to
health risks. See Davidson, 2019 WL 125999, at *32 n.23 (rejecting the
allegations that “defendants could have separated smoking and non-
smoking inmates into different housing block” as “undeveloped” due to
the “the realities of prison administration”). Tripathy even concedes that
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46
his request for “reasonable accommodations,” (Proposed 2d Am. Compl.
at 14, ¶ 2(i), ECF No. 47), including a “100% smoke free Dorm” or a
“short-term single room accommodation,” (ECF No. 53-1, Ex. E), and
a“100% segregated dorm facility[y] for non-smokers, where inmates can-
not buy, possess, or use any tobacco products,” (ECF No. 53-1, Ex. H),
were denied pursuant to Defendant’s efforts to enforce prison policy,
(Proposed 2d Am. Compl. at 16–18, ¶ 2(m), ECF No. 47.) The “realities
of prison administration,” indicate Tripathy’s requests were unreasona-
ble. Davidson, 2019 WL 125999, at *32 n.23. Even if they were reason-
able, he fails to allege Defendants made unreasonable efforts to enforce
their smoking policy.
For the foregoing reasons, I report and recommend that all of
Tripathy’s Section 1985 and 1983 claims be found futile.
QUALIFIED IMMUNITY
Finally, I decline to reach the issue of qualified immunity. I do not
find Defendants adequately briefed this issue; Defendants’ briefing
states the applicable legal standard without providing meaningful anal-
ysis of its applicability to this case.
And Defendants failed to realize it is quite possible the right Trip-
athy alleges they violated was clearly established. As I discuss more
fully below, this case is about Tripathy’s exposure to environmental to-
bacco smoke, (“ETS”), which his religion mandates that he avoid. The
Supreme Court has held that a prisoner “states a cause of action under
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47
the Eighth Amendment by alleging that” prison officials “have, with de-
liberate indifference, exposed him to levels of ETS that pose an unrea-
sonable risk of serious damage to his future health.” Helling 509 U.S. at
35; see also Alvarado v. Litscher, 267 F.3d 648, 652 (7th Cir. 2001) (not-
ing that “[t]he threat to future health was clearly established” by the
Supreme Court in Helling). Still, Defendants may renew their argument
at summary judgment.
CONCLUSION
For the reasons stated above, I recommend that the Hon. Frank
P. Geraci, Jr., Senior District Judge, DENY Tripathy’s motion to amend
in its entirety.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with
the Clerk of the Court.
UNLESS otherwise ordered by the Hon. Frank P. Geraci, Jr.,
District Judge, any objections to this Report and Recommendation must
be filed with the Clerk of Court within 14 days of service of this Report
and Recommendation in accordance with the above statute, Fed. R. Civ.
P. 72(b), 6(a) & (d), and W.D.N.Y. Loc. R. Civ. P. 72. Any requests for an
extension of this deadline must be made to Judge Geraci.
Failure to file objections, or to request an extension of
time to file objections within 14 days of service of this Report
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48
and Recommendation WAIVES the right to appeal the District
Court’s order. Small v. Sec’y of Health & Hum. Servs., 892 F.2d 15 (2d
Cir. 1989).
The District Court will ordinarily refuse to consider de novo argu-
ments, case law and/or evidentiary material which could have been, but
were not, presented to the Magistrate Judge in the first instance. See
Paterson–Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985,
990–91 (1st Cir. 1988).
Finally, the parties are reminded that, under W.D.N.Y. Loc. R.
Civ. P. 72(b), written objections “shall specifically identify the portions
of the proposed findings and recommendations to which objection is
made and the basis for each objection and shall be supported by legal
authority.” Failure to comply with these provisions may result in
the District Court’s refusal to hear the objection.
IT IS SO ORDERED.
Dated: 	February 12, 2024
Rochester, NY
MARK W. PEDERSEN
United States Magistrate Judge
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