9:25-cv-00591•Nowalk v. Akshar et al
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________ KYLE JOHN NOWALK, also known as Kyle Patrick John Nowalk, Plaintiff, 9:25-CV-0591 v. (ECC/ML) PRIME CARE MEDICAL INC., Medical/ Mental Health Care for “BCCF”; and BROOME COUNTY, Defendants. ____________________________________________ APPEARANCES: OF COUNSEL: Kyle John Nowalk Pro Se Plaintiff Rochester Psychiatric Center 1111 Elmwood Avenue Rochester, New York 14620-3005 BARCLAY DAMON, LLP PAUL A. SANDERS, ESQ. Counsel for Defendants Prime Care Medical and Broome County 2000 Five Star Bank Plaza 100 Chestnut Street Rochester, New York 14606-2072 MIROSLAV LOVRIC, United States Magistrate Judge REPORT and RECOMMENDATION Currently before the Court, in this civil rights action filed by Kyle John Nowalk (“Plaintiff”) against defendants Prime Care Medical Inc., and Broome County (collectively “Defendants”), is Defendants’ motion to dismiss for failure to state a claim upon which relief Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 1 of 107
2 may be granted pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 16.) For the reasons set forth below, I recommend that Defendants’ motion to dismiss be denied. I. RELEVANT BACKGROUND A. Plaintiff’s Claims In her Decision and Order dated August 11, 2025, United States District Judge Elizabeth C. Coombe thoroughly outlined the factual allegations contained in Plaintiff’s Amended Complaint. (Dkt. No. 10 at 2-4.) Plaintiff alleges that from February 6, 2025, through the time that he commenced the action on or about May 12, 2025, Plaintiff had been incarcerated at Broome County Jail (“BCJ”). (Dkt. No. 9 at 1.) The Amended Complaint alleges that while incarcerated, Plaintiff was denied medication to cure his chronic Hepatitis C because the medication is too expensive, and Plaintiff’s liver has been damaged as a result. (Id. at 1-2.) At this procedural posture, Plaintiff asserts medical indifference claims pursuant to the Fourteenth Amendment against Defendants. (Dkt. No. 10 at 5-6; see generally Dkt. No. 9.) B. Parties’ Briefing on the Motion to Dismiss 1. Defendants’ Motion to Dismiss Generally, in support of their motion to dismiss, Defendants assert that Plaintiff has failed to allege a Monell claim against them. (See generally Dkt. No. 16, Attach. 4.) More specifically, Defendants argue that a single alleged incident is insufficient to satisfy Monell and the Amended Complaint fails to allege a formal policy or widespread custom or practice. (Dkt. No. 16, Attach. 4 at 7-8.) 2. Plaintiff’s Response Generally, in opposition to Defendants’ motion to dismiss Plaintiff asserts that since 2022 he has been seeking medication from Defendants to cure his Hepatitis C but has been informed that it is too expensive. (Dkt. No. 19 at 1.) In his opposition, Plaintiff attached medical records Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 2 of 107
3 that he asserts reflect abnormal liver enzyme levels due to his Hepatitis C. (Id. at 1-2.) Plaintiff asserts that his rights were violated by Defendants refusing to cure his Hepatitis C. (Id. at 2.) 3. Defendants’ Reply Generally, in further support of their motion to dismiss, Defendants assert that Plaintiff’s opposition merely restates the conclusory allegations in the Amended Complaint and fails to allege facts plausibly suggesting a policy, custom, or practice that amounts to a constitutional violation. (Dkt. No. 23 at 2-3.) Defendants argue that Plaintiff does not identify other incidents involving similarly situated inmates that amounted to a widespread deprivation of providing medication and “it is well settled that a single alleged incident is insufficient to satisfy Monell.” (Id. at 3.) Moreover, Defendants argue that the medical records attached to Plaintiff’s opposition show an improvement of Plaintiff’s liver enzyme levels over time, “signaling a marked improvement without the use of antiviral medications.” (Id.) II. LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED It has long been understood that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds: (1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp. 2d 204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review). Because such dismissals are often based on the first ground, a few words regarding that ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). In the Court’s view, this tension between Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 3 of 107
4 permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed. R. Civ. P. 8(a)(2). On the one hand, the Supreme Court has long characterized the “short and plain” pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ. P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at 212, n.17 (citing Supreme Court cases) (emphasis added).1 The Supreme Court has explained that such fair notice has the important purpose of “enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal” notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp. 2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009). 1 Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v. Artuz, 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (McAvoy, C.J.). Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 4 of 107
5 Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court “retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the pleading must contain at least “some factual allegation[s].” Id. at 1965. More specifically, the “[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level],” assuming (of course) that all the allegations in the complaint are true. Id. As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not show[n]–that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 [internal quotation marks and citations omitted]. However, while the plausibility standard “asks for more than a sheer Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 5 of 107
6 possibility that a defendant has acted unlawfully,” id., it “does not impose a probability requirement.” Twombly, 550 U.S. at 556. Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citations omitted). However, “in a pro se case, the court must view the submissions by a more lenient standard than that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (Sharpe, M.J.) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to “‘make reasonable allowances to protect pro se litigants’” from inadvertently forfeiting legal rights merely because they lack a legal education. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). As a result, Twombly and Iqbal notwithstanding, the court must continue to “construe [a complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests.” Weixel v. Bd. of Educ., 287 F.3d 139, 146 (2d Cir. 2002). Finally, a few words are appropriate regarding what documents are considered when a dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 6 of 107
7 four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are “integral” to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case.2 Moreover, “a pro se plaintiff’s papers in response to a defendant’s motion to dismiss for failure to state a claim may be considered as effectively amending the allegations of his complaint—to the extent those papers are consistent with the allegations in the complaint.” See Drake v. Delta Airlines, Inc., 147 F.3d 169, 170, n. 1 (2d Cir. 1998) (per curiam) (“[W]e deem Drake’s 2 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion to dismiss for failure to state a claim to a motion for summary judgment is not necessary under Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consideration consist of [1] documents attached to the complaint or answer, [2] documents incorporated by reference in the complaint (and provided by the parties), [3] documents that, although not incorporated by reference, are “integral” to the complaint, or [4] any matter of which the court can take judicial notice for the factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint. . . . Where a document is not incorporated by reference, the court may never[the]less consider it where the complaint relies heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . . However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document. It must also be clear that there exist no material disputed issues of fact regarding the relevance of the document.”) [internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,” the court may nevertheless take the document into consideration in deciding [a] defendant’s motion to dismiss, without converting the proceeding to one for summary judgment.”) (internal quotation marks and citation omitted). Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 7 of 107
8 complaint to include the facts contained in his memorandum of law filed in response to Delta’s 1996 motion to dismiss.”); Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (“In his affidavit submitted in opposition to defendants’ motion to dismiss, Gill asserts that Mooney’s actions amounted to deliberate and willful indifference. Liberally construed under pro se pleading standards, Gill’s allegations against Mooney involve more than ordinary lack of due care for the prisoner’s interests or safety, . . . and therefore state a colorable claim under the Eighth and Fourteenth Amendments.”) (internal quotation marks and citation omitted); Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (Sharpe, M.J.) (“[I]n cases where a pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider materials outside of the complaint to the extent they “are consistent with the allegations in the complaint.”) (collecting district court cases), vacated on other grounds, 317 F. Supp. 2d 160 (N.D.N.Y. 2004) (Hurd, J.). III. ANALYSIS After carefully considering the matter, I recommend that Defendants’ motion to dismiss be denied. As Judge Coombe set forth in her Decision and Order dated August 11, 2025: Municipal liability is limited under Section 1983 by Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978). In Monell, the Supreme Court found that municipal liability existed “where that organization’s failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006). Thus, to successfully state a claim for Monell liability, a plaintiff must “make factual allegations that support a plausible inference that the [alleged] constitutional violation took place pursuant either to a formal course of action officially promulgated by the municipality’s governing authority or the act of a person with policy making authority for the municipality.” Missel v. Cnty. of Monroe, 351 Fed. App’x 543, 545 (2d Cir. 2009) (citing Vives v. City of N.Y., 524 F.3d 346, 350 (2d Cir. 2008)). “Absent such a custom, policy, or usage, a municipality cannot be held liable on a respondeat superior basis for the tort of its employee.” Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); see also Los Angeles County, Cal. v. Humphries, Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 8 of 107
9 562 U.S. 29, 36 (2010) (“[I]n Monell the Court held that ‘a municipality cannot be held liable’ solely for the acts of others, e.g., ‘solely because it employs a tortfeasor.’” (quoting Monell, 436 U.S. at 691)). (Dkt. No. 10 at 4-5.) Contrary to Defendants’ contention, a single incident of unconstitutional activity may be sufficient to impose liability under Monell, if the incident includes proof that it was caused by an existing, unconstitutional municipal policy that can be attributed to a municipal policymaker. Vasquez v. Cnty. of Rockland, 13-CV-5632, 2020 WL 883514, at *14 (S.D.N.Y. Feb. 24, 2020) (quoting City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985)). Notwithstanding, the Amended Complaint alleges that Plaintiff was repeatedly denied Hepatitis C medication while incarcerated at BCJ because the medication is too expensive. (Dkt. No. 9 at 1-2.) Construed liberally, the Amended Complaint alleges that Defendants have a policy of not administering medication to incarcerated individuals if the cost of the medication surpasses a monetary threshold. (Id. at 2.) Courts within the Second Circuit have found that denying medication based on budget constraints rather than medical needs can establish a deliberate indifference claim. See Colon v. Cnty. of Nassau, 12-CV-4466, 2014 WL 4904692, at *7 (E.D.N.Y. Sept. 26, 2014) (finding that the denial of psychiatric medication based on a budget rather than medical needs could establish the mens rea prong of a deliberate indifference claim); see also Daniels v. Mueller, 23-CV-5654, 2025 WL 949842, at *26 (S.D.N.Y. Mar. 28, 2025) (concluding that “the Court of Appeals has spoken sufficiently clearly in holding that inmates have [a constitutional] right not to have prison officials rely on a policy to reject a request for medication when the officials know it might be medically appropriate to prescribe the medication instead.”); Donohue v. Manetti by Armor Corr. Health Servs., 15-CV-0636, 2025 WL 974347, at *16 (E.D.N.Y. Mar. 31, 2025) (holding that a jury could find “credible Plaintiff’s testimony that Dr. Manetti chose not to prescribe Plaintiff Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 9 of 107
10 medication because of his reliance on a purported . . . policy” and thus, could find a deliberate indifference claim). Although the allegations contained in the Amended Complaint are sparse, I find that they sufficiently allege—albeit barely—that Defendants’ policy of denying him medication to cure his Hepatitis C violated his constitutional rights. As a result, I recommend that the Court deny Defendants’ motion to dismiss for failure to state a claim upon which relief may be granted.3 ACCORDINGLY, it is respectfully RECOMMENDED that Defendants’ motion to dismiss for failure to state a claim upon which relief may be granted (Dkt. No. 16) be DENIED; and it is further ORDERED that the Clerk of the Court shall file a copy of this Report and Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.4 3 The undersigned notes that if the Amended Complaint is instead construed as alleging a Monnell claim against Defendants based on a failure-to-train theory, it likely should be dismissed because the Amended “Complaint does not allege any prior incidents of improper [Hepatitis C medication] administration resulting in death or serious injury at [BCJ]. In addition, the [Amended] Complaint’s allegations do not fall into the ‘narrow range of circumstances’ where failure-to-train liability can result from a single incident because the [Amended] Complaint does not allege, for example, that detainees regularly receive [Hepatitis C medication] or that death or serious injury is a highly predictable result of that medication.” Nason v. Franklin Cnty., 25-CV- 0435, 2026 WL 759440, at *8 (N.D.N.Y. Mar. 18, 2026) (Coombe, J.) (citing Connick v. Thompson, 563 U.S. 51, 63 (2011)). 4 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 10 of 107
11 NOTICE: Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report.5 Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72. Dated: April __, 2026 Binghamton, New York 5 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. FED. R. CIV. P. 6(a)(1)(C). 28 Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 11 of 107
Colon v. County of Nassau, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag Distinguished by Vassallo v. City of New York, S.D.N.Y., November 22, 2016 2014 WL 4904692 Only the Westlaw citation is currently available. United States District Court, E.D. New York. Randy COLON, Hugh Smith, Edward Vaiana, Elvi Rodriguez, and Tyron Maynor, Plaintiffs, v. COUNTY OF NASSAU; Michael J. Sposato, Sheriff of Nassau County; Armor Correctional Health, Inc.; Dr. Kay, M.D.; Dr. Omanu, M.D.; Dr. Vincent Manetti, M.D.; Nurse Administrator Hailey; Dr. Santarelli, D .D.S., Defendants. No. 12–CV–4466 (JS)(SIL). | Signed Sept. 26, 2014. Attorneys and Law Firms Randy Colon, Elvi Rodriguez, Tyron Maynor, East Meadow, NY, Hugh Smith, Edward Vaiana, Altona, NY, pro se. Pablo A. Fernandez, Esq., Nassau County Attorney's Office, Mineola, NY, for the County Defendants. John J. Doody, Esq., Suzanne E. Aribakan, Esq., Lewis Brisbois Bisgaard & Smith, LLP, New York, NY, for the Armor Defendants. MEMORANDUM & ORDER SEYBERT, District Judge. *1 Currently before the Court is a motion to dismiss filed by defendants Dr. Kay, M.D.; Dr. Omanu, M.D.; Dr. Vincent Manetti, M.D.; Nurse Administrator Hailey, R.N.; Dr. Santarelli, D.D.S. (collectively, the “Individual Armor Defendants”); and Armor Correctional Health, Inc. (“Armor,” and together with the Individual Armor Defendants, the “Armor Defendants”). For the following reasons, the Armor Defendants' motion is GRANTED IN PART and DENIED IN PART. BACKGROUND 1 I. Factual Background Pro se plaintiffs Randy Colon (“Colon”), Hugh Smith (“Smith”), Edward Vaiana (“Vaiana”), Elvi Rodriguez (“Rogriguez”), and Tyron Maynor (“Maynor”) (collectively, “Plaintiffs”) 2 are a group of former and current inmates incarcerated at the Nassau County Correctional Center (the “NCCC”). Plaintiffs assert various federal and state law claims against the Armor Defendants and additional defendants Nassau County (the “County”) and the Nassau County Sheriff, Michael J. Sposato (“Sposato”) (collectively, “Defendants”), arising out of Defendants' alleged failure to provide adequate medical care to Plaintiffs while housed at the NCCC. The Complaint alleges various purported violations and is organized into sections by the particular claim and/or defendant. In reciting the facts, the Court will draw from the Complaint's structure. A. The County's Contract with Armor On June 1, 2011, the County and Sposato entered into a contract with Armor, a “Florida-based health care corporation,” for Armor to provide medical services for the inmates at the NCCC. (Compl. at 8 3 , ¶¶ 1, 4.) According to Plaintiffs, the contract “confines” Armor to a $25 million budget, which covers “all costs and fees for medications, salaries, supplies, and even community based health care services ... and tests and procedures.” (Compl. at 9, ¶ 5.) Plaintiffs claim that the contract, because it subjects Armor to a fixed budget, causes Armor “to cut costs wherever possible” in order to maximize profit, which in turn results in “sub- standard” healthcare services. (Compl. at 10, ¶ 7.) This, Plaintiffs contend, constitutes deliberate indifference to the medical needs of the inmates at the NCCC in violation of the Eighth and Fourteenth Amendments. B. Dr. Kay The Complaint also makes the following allegations against Defendant Dr. Kay. Dr. Kay is the Chief Medical Officer of the NCCC. (Compl. at 10, ¶ 11.) Plaintiffs allege generally that, as the Chief Medical Officer, Dr. Kay “adheres to and enforces” Armor's “company policy” of limiting “medication dispensing and prescribing” within the budget for the NCCC “notwithstanding medical need.” (Compl. at 10–11, ¶ 11.) Plaintiff Smith alleges that Dr. Kay refused to order batteries Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 12 of 107
Colon v. County of Nassau, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 for his hearing aids despite the fact that Smith was “in possession of” medical records that demonstrate that he requires hearing aids. (Compl. at 11–12, ¶ 14 .) Additionally, Smith claims that he has “documented” podiatric issues and is a type 2 diabetic but Dr. Kay “refuses” to send him for a podiatric or ophthalmological consult. (Compl. at 12, ¶ 15.) Plaintiff Colon similarly alleges that he is a type 1 diabetic and that Dr. Kay has “consistently denied podiatric and ophthalmological preventative care.” (Compl. at 12, ¶ 17.) Based on these allegations, Smith and Colon claim that Dr. Kay was deliberately indifferent to their medical needs in violation of the Eighth and Fourteenth Amendments and that he committed medical malpractice under New York state law. C. Dr. Manetti *2 The Complaint makes the following allegations against Dr. Manetti. Dr. Manetti is employed by Armor as a staff psychiatrist at the NCCC. (Compl. at 14, ¶ 23.) Plaintiffs allege generally that inmates at the NCCC with documented psychiatric history “have been denied psychoactive medication” “based on Armor's strict budget policies.” (Compl. at 14, ¶ 24.) For example, Plaintiff Rodriguez alleges that when he was previously housed at the NCCC, he “was given psych[o]active medication” but that Dr. Manetti later told him “well, since Armor doesn't want to pay for it, I guess you don't need it.” (Compl. at 14, ¶ 25.) Plaintiff Smith similarly alleges that he was denied psychoactive medication “based on Armor's strict budget policies” despite a “well documented 10 year psych history.” (Compl. at 14, ¶ 24.) Based on these allegations, Smith and Rodriguez claim that Dr. Manetti was deliberately indifferent to their medical needs in violation of the Eighth and Fourteenth Amendments and that he committed medical malpractice under New York state law. D. Nurse Administrator Hailey The Complaint makes the following allegations against Nurse Administrator Hailey (“Nurse Hailey”). Plaintiffs allege that Nurse Hailey “consistently overrules tests, procedures, consults, and other treatments deemed medially necessary by Licensed Physicians and Specialized Care Practitioners,” despite the fact that her nursing license limits her to the practice of nursing. (Compl. at 15–16, ¶¶ 29–31.) Plaintiff Maynor claims that a physician at the NCCC referred him to the Nassau University Medical Center (“NUMC”) for his elbow. (Compl. at 16, ¶ 32.) Although a physician at the NUMC opined that surgery for Maynor's elbow was “medically necessary,” Nurse Hailey “decided unilaterally that the operation was not medically necessary.” (Compl. at 16, ¶¶ 33, 34.) Based on these allegations, Maynor claims that Nurse Hailey was deliberately indifferent to his medical needs in violation of the Eighth and Fourteenth Amendments and that she “is guilty of practice of medicine without a license.” (Compl. at 15.) E. Dr. Santarelli The Complaint makes the following allegations against Dr. Santarelli. Dr. Santarelli is a dentist employed by Armor. (Compl. at 19, ¶¶ 43–44.) Plaintiffs allege generally that Dr. Santarelli refuses to provide “preventative dentistry” except for inmates sentenced as county prisoners and that he performs extractions and other painful procedures without administering anesthesia. (Compl. at 19, ¶¶ 44, 46.) Smith alleges that after he chipped his tooth in August 2012, Dr. Santarelli filed the damaged tooth with a drill without first administering anesthesia and then refused to give him Tylenol for the pain. (Compl. at 20, ¶¶ 47–48.) Based on these allegations, Smith claims that Dr. Santarelli was deliberately indifferent to his medical needs in violation of the Eighth and Fourteenth Amendments and that he committed dental malpractice. F. Privacy Claims *3 Plaintiffs also allege that Armor staff “constantly permit[ ] correction staff [to] access Confidential Medical Records” and discuss “Mental Health and HIV-related- and other confidential health matters-with the correctional staff, without express written consent.” (Compl. at 18, ¶ 41.) For example, on August 15, 2012, Captain Ford, the Chief Administrative Officer, told Plaintiff Vaiana “that the ‘Facility Physician’ discussed with him details of [Vaiana's] medical conditions ... without written consent or release.” (Compl. at 18–19, ¶ 42.) Based on these allegations, Vaiana contends that the County, Sposato, and Armor have violated the Health Information Portability and Accountability Act (“HIPAA”) and “other state and Federal privacy laws [that] prohibit the dissemination of Confidential Medical Information to any third party.” (Compl. at 18, ¶ 40.) The Complaint also states the Court “may wish to consider” a “conspiracy against rights” claim as well as a civil claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). (Compl. at 20–21, ¶ 51.) G. Injunctive and Declaratory Relief Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 13 of 107
Colon v. County of Nassau, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 The Complaint also seeks various forms of injunctive and declaratory relief. Specifically, the Complaint seeks “a preliminary and permanent injunction, enjoining, prohibiting and restraining enforcement of the contract” between the County and Armor. (Compl. at 28.) It also seeks a judgment declaring (1) that the contract violates the Eighth and Fourteenth Amendments and thus is illegal and unenforceable; (2) that the Individual Armor Defendants are “guilty” of medical malpractice and deliberate indifference; and (3) that Defendants “violate Plaintiffs' rights under HIPAA and other Federal and state privacy laws.” (Compl. at 26–27.) II. Procedural History On December 3, 2012, mail sent by the Court to Plaintiffs Vaiana, Rodriguez, and Maynor at the NCCC was returned as undeliverable with notations that these plaintiffs were “DISCHARGED.” (Docket Entries 25–27.) However, Vaiana subsequently filed a notice of change of address on April 10, 2014, respectively advising the Court that he had been transferred to the Altona Correctional Facility (the “ACF”) in Altona, New York. (Docket Entry 54.) Rodriguez and Maynor have not updated their addresses. On December 6, 2013, the Armor Defendants moved to dismiss this action for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket Entry 50.) Plaintiffs have not submitted oppositions. This motion is currently pending before the Court. DISCUSSION The Court pauses for a moment to note that it is fully aware that Plaintiff Miller, who has been terminated, was likely the driving force behind the filing of this action. He drafted and filed the Complaint—as he has done for other inmates in the past, see, e.g., Burroughs v. Cnty. of Nassau, No. 13–CV– 6784, 2014 WL 2587580, at *5 (E.D.N.Y. June 9, 2014)—and none of the remaining Plaintiffs have filed an opposition to the Armor Defendants' motion to dismiss. Additionally, Plaintiffs Rodriguez and Maynor have failed to update their addresses with the Court, and nearly two years elapsed before Plaintiff Vaiana finally provided his updated address after he left the NCCC. The Court makes these points not as an indictment with respect to the merits of Plaintiffs' claims, but instead, as a warning that a failure to prosecute this action, including the failure to apprise the Court of any future address changes in a timely fashion or at all, may result in dismissal of this action. That aside, the Court will turn to the Armor Defendants' motion. The Court will first set forth the applicable legal standard before turning to the motion specifically. I. Legal Standard *4 In deciding a Rule 12(b)(6) motion to dismiss, the Court applies a “plausibility standard,” which is guided by “[t]wo working principles.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); accord Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir.2009). First, although the Court must accept all allegations as true, this “tenet” is “inapplicable to legal conclusions;” thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678; accord Harris, 572 F.3d at 72. Second, only complaints that state a “plausible claim for relief” can survive a Rule 12(b)(6) motion to dismiss. Iqbal, 556 U.S. at 679. Determining whether a complaint does so is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.; accord Harris, 572 F.3d at 72. Because Plaintiffs are litigating pro se, the Court construes the Complaint liberally. See, Mancuso v. Hynes, 379 F. App'x 60, 61 (2d Cir.2010). II. Failure to Exhaust Administrative Remedies The Armor Defendants initially argue that the Complaint should be dismissed because Plaintiffs have failed to exhaust their administrative remedies as required by the Prison Litigation Reform Act (“PLRA”). (Armor's Br., Docket Entry 51, at 8–9.) The Court disagrees. The PLRA states in relevant part: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 984, 152 L.Ed.2d 12 (2002). Here, Plaintiffs allege that “[e]ach of the issues has been grieved through the facility process, by one Plaintiff or another.” (Compl. at 2.) Nonetheless, the Armor Defendants argue that the Complaint should be dismissed because “there Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 14 of 107
Colon v. County of Nassau, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 is no indication of when or t[o] whom the grievances were made, no allegations of the outcome of these purported grievances[,] or that any of the plaintiffs undertook further action to complain of or appeal any purported inaction.” (Armor's Br. at 9.) However, failure to exhaust is an affirmative defense, and the Supreme Court has held that “inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 912, 166 L.Ed.2d 798 (2007). “Dismissal under Rule 12(b)(6) for failure to exhaust is thus appropriate only where nonexhaustion is apparent from the face of the complaint.” Roland v. Smith, 907 F.Supp.2d 385, 388 (S.D.N.Y.2012) (citing McCoy v. Goord, 255 F.Supp.2d 233, 251 (S.D.N.Y.2003)). Here, non-exhaustion is not clear from the face of the Complaint. In fact, the Complaint specifically alleges that Plaintiffs grieved “each of the issues.” (Compl. at 2.) Accordingly, the Armor Defendants' motion to dismiss on the ground of failure to exhaust is DENIED. III. Section 1983 *5 The Armor Defendants next argue that, even if Plaintiffs have exhausted their administrative remedies, Plaintiffs have otherwise failed to state claims for deliberate indifference to their medical needs under 42 U.S.C. § 1983 (“Section 1983”). (Armor's Br. at 9–18.) The Court will first set forth the applicable law and then separately address whether Plaintiffs have sufficiently stated claims against each of the Individual Armor Defendants and against Armor. A. Applicable Law Section 1983 states that: [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United states ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured .... 42 U.S.C. § 1983. To state a Section 1983 claim, a plaintiff must allege (1) that the challenged conduct was “committed by a person acting under color of state law,” and (2) that such conduct “deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir.2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994)). Section 1983 does not create any independent substantive right. Rather, it is a vehicle to “redress ... the deprivation of [federal] rights established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.1999); see also Rosa R. v. Connelly, 889 F.2d 435, 440 (2d Cir.1989). Here, Plaintiffs claim that the Armor Defendants were deliberately indifferent to their medical needs in violation of the Eighth and Fourteenth Amendments. 4 To state a claim of deliberate indifference to an inmate's medical needs, a plaintiff must plead two elements: (1) that the alleged deprivation of medical care was “sufficiently serious” and (2) that the defendant acted with deliberate indifference, i.e., “the charged official must [have] act[ed] with a sufficiently culpable state of mind.” See Salahuddin v. Goord, 467 F.3d 263, 279–81 (2d Cir.2006). To determine whether a deprivation is “sufficiently serious,” the Court must make two inquires. The first inquiry is whether “the prisoner was actually deprived of adequate medical care,” keeping in mind that “the prison official's duty is only to provide reasonable care.” Id. at 279. The second inquiry, which is an objective question, “requires the court to examine how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner.” Id. at 280. The second requirement of a deliberate indifference claim —i.e., that “the charged official ... act[ed] with a sufficiently culpable state of mind”—is a subjective question. Id. “[T]he official's state of mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health.” Id. Deliberate indifference is “equivalent to subjective recklessness, as the term is used in criminal law.” Id. In other words, “[t]his mental state requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result.” Id. However, “the risk of harm must be substantial and the official's actions more than merely negligent.” Id. With these standards in mind, the Court will turn to the allegations against the Armor Defendants. B. The Individual Armor Defendants Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 15 of 107
Colon v. County of Nassau, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 *6 The Armor Defendants assert that Plaintiffs have not sufficiently alleged deliberate indifference claims against the Individual Armor Defendants. (Armor's Br. at 10–17.) The Court agrees in part and disagrees in part as discussed below. 1. Dr. Kay The Complaint alleges that Dr. Kay was deliberately indifferent to Smith's and Colon's medical needs by (1) refusing to order batteries for Smith's hearing aids; (2) refusing to send Smith for a podiatric or ophthalmological consult; and (3) “consistently” denying Colon podiatric and ophthalmological “preventative care.” (Compl. at 10–13.) The Armor Defendants first argue that Smith's and Colon's allegations regarding the denial of podiatric and ophthalmological care are insufficient to state a deliberate indifference claim against Dr. Kay because “the Complaint concedes that the underlying conditions [of diabetes] are not serious, but rather are potentially life threatening issues.” (Armor's Br. at 12 (emphasis in original) (citing Compl. ¶ 20).) This argument is easily dismissed. Courts in this Circuit have held that “diabetes is a sufficiently serious medical condition to meet the objective prong” of a deliberate indifference claim. Beatty v. Davidson, 713 F.Supp.2d 167, 174 (W.D.N.Y.2010) (collecting cases). Moreover, it is irrelevant that the Complaint alleges that Smith's and Colon's conditions were only “potentially” life threatening because a condition does not need to be life threatening to form the basis of a deliberate indifference claim. See Regeda v. City of N .Y., No. 09–CV–5427, 2012 WL 7157703, at *7 (E.D.N.Y. Sept. 7, 2012) (“[T]he defendants' argument that conditions that do not threaten death or basic functioning are not sufficiently serious is inaccurate because a prisoner does not have to suffer ‘extreme pain’ or a degenerative condition in order to meet the legal standard for objective seriousness.”), adopted by 2013 WL 619567 (E.D.N.Y. Feb. 19, 2013); see also Mims v. Ufland, No. 07–CV–1926, 2007 WL 4208582, at *3 (S.D.N.Y. Nov. 21, 2007) (“The ‘seriousness' inquiry ... is ‘ill-suited for resolution at the pleading stage and will have to await summary judgment proceedings, at which point a fully developed medical record will inform the court as to the nature of the inmate's condition.’ “ (quoting Smith v. Carpenter, 316 F.3d 178, 188 n. 14 (2d Cir.2003)). Thus, Smith and Colon have alleged sufficient facts to satisfy the objective prong of their deliberate indifference claims regarding the alleged denial of diabetes treatment. The Armor Defendants also argue that Smith and Colon have not satisfied the subjective prong of their deliberate indifference claim because they have not pleaded facts “upon which a plausible inference may be inferred that Dr. Kay was aware that” denying podiatric and ophthalmological care “posed a risk” to “Smith and/or Colon's health or safety.” (Armor's Br. at 12.) The Court disagrees. Construing the Complaint liberally, as it must, Smith and Colon suggest that Dr. Kay denied treatment because of budgetary constraints. If this is true and if the treatments at issue were medically necessary, this allegation could support a conclusion that Dr. Kay was deliberately indifferent to Smith's and Colon's medical needs. See Liner v. Fischer, No. 11– CV–6711, 2013 WL 4405539, at *21 (S.D.N.Y. Aug. 7, 2013) (denying motion to dismiss deliberate indifference claim because “[i]f, as [plaintiff] alleges, he was denied necessary medication for almost two years [due to ‘budget cuts,’] this delay could potentially be a factor in support of a finding of deliberate indifference”); Stevens v. Goord, 535 F.Supp.2d 373, 388 (S.D.N.Y.2008) ( “While disagreements regarding choice of treatment are generally not actionable under the Eighth Amendment, judgments that have no sound medical basis, contravene professional norms, and appear designed simply to justify an easier course of treatment (in this case, no treatment) may provide the basis of a claim.”). Thus, Smith and Colon have alleged sufficient facts to satisfy the subjective prong of their deliberate indifference claims regarding the alleged denial of diabetes treatment. *7 The Court also finds that Smith has alleged sufficient facts to support a deliberate indifference claim regarding the alleged denial of batteries for his hearing aids. Plaintiff alleges that his medical record “shows that he requires hearing aids ... and Dr. Kay ... refuse[s] to order batteries.” (Compl. at 12, ¶ 14.) Although scant, these allegations could support a claim of deliberate indifference to a serious medical need. See Wheeler v. Butler, 209 F. App'x 14, 15 (2d Cir.2006) (“[T]he District Court erred in failing to consider whether the deprivation of Wheeler's hearing aids could, in and of itself, amount to cruel and unusual punishment ....”); Degrafinreid v. Ricks, 417 F.Supp.2d 403, 412 (S.D.N.Y.2006) (denying motion to dismiss deliberate indifference claim regarding denial of hearing aids), granting reconsideration on other grounds, 452 F.Supp.2d 328 (S.D.N.Y.2006). In sum, Smith and Colon have stated plausible claims of deliberate indifference based on the alleged denial of diabetes treatment and hearing aid batteries. Accordingly, the Armor Defendants' motion to dismiss Smith's and Colon's claims against Dr. Kay is DENIED. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 16 of 107
Colon v. County of Nassau, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 2. Dr. Manetti The Complaint alleges that Dr. Manetti was deliberately indifferent to Rodriguez's and Smith's medical needs when he denied them “psychoactive medication.” (Compl. at 13– 15.) The Armor Defendants move to dismiss these claims for substantially the same reasons as the claims against Dr. Kay. They argue that the Complaint does not raise plausible inferences that the denial of care was “sufficiently serious” and that Dr. Manetti was aware that the denial of medication posed a risk to Rodriguez's and Smith's health and safety. (Armor's Br. at 14–15.) The Court again disagrees. The Complaint alleges that Rodriguez “was given psych[o]active medication” but that Dr. Manetti told him “well, since Armor doesn't want to pay for it, I guess you don't need it.” (Compl. at 14, ¶ 25.) If true, the fact that Rodriguez was previously treated for a psychiatric condition with medication would clearly indicate that his condition was serious. See Hamm v. Hatcher, No. 05–CV–0503, 2013 WL 71770, at *8 (S.D.N.Y. Jan. 7, 2013) (“Courts have repeatedly held that treatment of a psychiatric or psychological condition may present a serious medical need.”). Moreover, if Dr. Manetti subsequently denied Rodriguez medication based solely on Armor's budget, and not on actual medical need, Rodriguez could also establish the subjective prong of a deliberate indifference claim. Smith's allegations, although not as compelling as Rodriguez's, also state a deliberate indifference claim because he alleges that he was denied psychoactive medication despite a “well documented 10 year psych history” “[b]ased on Armor's strict budget policies.” (Compl. at 14, ¶ 24.) In sum, Smith and Rodriguez have stated plausible claims of deliberate indifference based on the alleged denial of medication for their alleged psychiatric conditions. Accordingly, the Armor Defendants' motion to dismiss Rodriguez's and Smith's deliberate indifference claims against Dr. Manetti is DENIED. 3. Nurse Hailey *8 The Complaint alleges that Nurse Hailey was deliberately indifferent to Maynor's medical needs when she “decided unilaterally” that he did not need surgery for his elbow notwithstanding the fact that a “specialized care provider” at the NUMC opined that surgery was “medically necessary.” (Compl. at 15–17.) The Armor Defendants argue that this claim must be dismissed because it “amounts to nothing more than a difference of opinion in the course of treatment between two medical professionals, which does not rise to the level of a constitutional violation.” (Armor's Br. at 15.) The Court disagrees. Although it is true that “disagreements” over medical treatment “implicate medical judgments and not the Eighth Amendment,” Wright v. Genovese, 694 F.Supp.2d 137, 155 (N.D.N.Y.2010), aff'd, 415 F. App'x 313 (2d Cir.2011), the Complaint does not simply allege a disagreement between a physician and an inmate over medical treatment. Rather, the Complaint alleges that Nurse Hailey-who is not a physician and who is not authorized to overrule a physician's medical opinion-“decided unilaterally,” “without even seeing or examining” Maynor, that Maynor's surgery was not “medically necessary” despite the fact that a doctor opined that it was. (Compl.¶¶ 33–35.) Thus, the cases regarding disagreements in medical treatment are inapplicable here. The Court finds that these allegations state a claim of deliberate indifference. If a physician opined that surgery for Maynor's elbow was “medically necessary,” then Maynor could establish that his elbow condition was “sufficiently serious” under the objective prong of the deliberate indifference claim. Additionally, if Nurse Hailey decided that surgery was not necessary even though she was not qualified to make such a determination, then Maynor could also establish that she acted with deliberate indifference to Maynor's health. See Stevens, 535 F.Supp.2d at 388. Accordingly, the Armor Defendants' motion to dismiss Maynor's claim arising out of Nurse Hailey's alleged denial of elbow surgery is DENIED. 4. Dr. Santarelli The Complaint alleges that Dr. Santarelli was deliberately indifferent when he filed Smith's chipped tooth with a drill without administering anesthesia or giving him Tylenol. (Compl. at 19–20.) As discussed below, the Court finds that this allegation does not state a deliberate indifference claim. “The Cruel and Unusual Punishments Clause of the Eighth Amendment imposes a duty upon prison officials to ensure that inmates receive adequate medical care.” Salahuddin, 467 F.3d at 279 (citing Farmer v. Brennan, 511 U.S. 825, 832, 844, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994)). Here, the Complaint does not allege that Dr. Santarelli failed to address Smith's medical need—i.e., the need for tooth repair. Rather, Smith appears to disagree with Dr. Santarelli's decision to drill his tooth without anesthesia. In this regard, courts have Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 17 of 107
Colon v. County of Nassau, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 found that the administration of anesthesia for minor medical procedures is not a serious medical need implicating the Eight Amendment. As the Court in Bout v. Bolden, 22 F.Supp.2d 646 (E.D.Mich.1998), aff'd 225 F.3d 658 (6th Cir.2000) explained: *9 Plaintiff's “serious medical need” was not for anesthesia, but rather for tooth repair. Plaintiff's disagreement with the course of treatment-the decision to drill without anesthesia rather than further delay treatment given the minor nature of the repair and relatively brief period of pain —does not state a constitutional claim. Had [the dentist] gratuitously drilled plaintiff's teeth for no good medical reason, then the evidence would clearly support a finding of willful and wanton infliction of pain and plaintiff would have supported a direct claim for cruel and unusual punishment contrary to the Eighth Amendment. However, where pain was an incidental part of a dentist's chosen course of treatment, the question is not whether [the dentist] was indifferent to the incidental pain, but rather whether he was indifferent to plaintiff's existing dental condition. Plaintiff conceivably may have some other claim against [the dentist]- for battery, perhaps, for malpractice, perhaps-but he does not have a constitutional claim arising out of his treatment .... 22 F.Supp.2d at 651; see also Buchanan v. United States, No. 05–CV–0887, 2007 WL 983312, at *4 (M.D.Pa. Mar. 27, 2007) (dismissing as not cognizable inmate's claim “that the deliberate decision not to administer anesthesia or pain killing medicine [before cleaning and suturing a laceration] subjected him to unnecessary pain in violation of the Eighth Amendment's prohibition against cruel and unusual punishment”). The Court is persuaded by the reasoning of these cases. Here, Smith alleges no facts to suggest that Dr. Santarelli engaged in cruel and unusual punishment in violation of the Eight Amendment. Smith might have a claim under some other theory of liability but he does not have a constitutional claim arising out of his dental treatment as currently pleaded. Accordingly, the Armor Defendants' motion to dismiss Smith's claim regarding Dr. Santarelli's alleged decision to drill his tooth without anesthesia is GRANTED and this claim is DISMISSED. C. Armor The Complaint also alleges that Armor itself was deliberately indifferent to Plaintiffs' medical needs based upon the alleged conduct of the Individual Armor Defendants. (Compl. at 17, ¶ 37.) The Armor Defendants move to dismiss this claim, arguing that Plaintiffs “do not identify an unlawful or unconstitutional Armor policy or practice” sufficient to subject it to liability based on the alleged actions of its employees. (Armor's Br. at 18.) The Court disagrees. “Anyone whose conduct is ‘fairly attributable to the state’ can be sued as a state actor under § 1983.” Filarsky v. Delia, 132 S.Ct. 1657, 1661, 182 L.Ed.2d 662 (2012). Thus, a private employer acting under color of state law may be held liable under Section 1983 for the acts of its employees where the unconstitutional act was authorized or undertaken pursuant to the official policy of the private entity employer and the employer was jointly engaged with state officials or its conduct is chargeable to the state. See Cofield v. Armor Corr. Health, No. 12–CV–1394, 2012 WL 1222326, at *2 (E.D.N.Y. Nov. 2, 2012) (citations omitted). *10 Armor does not contend that its conduct is not “fairly attributable to the state.” Rather, as noted above, it argues that Plaintiffs have not identified an official policy sufficient to trigger Section 1983 liability. However, the Complaint alleges generally that the contract between it and the County subjects Armor to a fixed budget and that Armor consequently “cut[s] costs wherever possible” in order to maximize profit. (Compl. at 10, ¶ 7.) In addition, the Complaint also alleges that Dr. Kay “adheres to and enforces a ‘company policy’ of Armor, which limits medication dispensing and prescribing to the facility formulary within the budget for the contract .... notwithstanding medical need,” and that Dr. Manetti told Rodriguez “well, since Armor doesn't want to pay for [psychoactive medication], I guess you don't need it.” (Compl.¶¶ 11, 25.) Thus, based on these allegations, Armor is potentially liable under Section 1983. See Cephas v. Nassau Cnty. Corr. Ctr., No. 12–CV–1445, 2014 WL 537576, at *5 (E.D.N.Y. Feb. 10, 2014) (finding that “plaintiff identified some pertinent official policy when his Amended Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 18 of 107
Colon v. County of Nassau, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 Complaint referred to the nurse who said, ‘Armor doesn't give stronger medication or MRIs or treatment’ “ (citation omitted)). IV. HIPAA Plaintiffs claim that Armor violated HIPAA when a facility physician allegedly discussed Plaintiff Vaiana's medical condition with Captain Ford. (Compl. at 18–19.) However, “HIPAA does not provide for either an express or implied private right of action.” Warren Pearl Constr. Corp. v. Guardian Life Ins. Co. of Am., 639 F.Supp.2d 371, 377 (S.D.N.Y.2009); see also Cohen v. Cnty. of Nassau, No. 10– CV–5836, 2011 WL 1630136, at *7 (E.D.N.Y Apr. 27, 2011) (dismissing inmate's HIPAA claims); Mascetti v. Zozulin, No. 09–CV–0963, 2010 WL 1644572, at *4 (D.Conn. Apr. 20, 2010) (“Enforcement of [HIPAA] and its regulations is limited to the Secretary of Health and Human Services; thus, there is no private right of action.”); Barnes v. Glennon, No. 05–CV–0153, 2006 WL 2811821, at *6 (N.D.N.Y. Sept. 28, 2006) (“[T]here is no private cause of action stemming from HIPAA.”). Accordingly, Plaintiffs have no claim under HIPAA as a matter of law. The Armor Defendants' motion to dismiss the HIPAA claim is therefore GRANTED and this claim is DISMISSED. V. Conspiracy Against Rights The Complaint also states that “the Court may wish to consider the feasibility of conspiracy against rights” claim against the Armor Defendants. (Compl.¶ 51.) Plaintiffs do not specify the source of this potential claim but the Court interprets it as being brought under 18 U.S.C. § 241, which is titled “Conspiracy Against Rights.” However, Plaintiffs' hypothetical claim would fail because Section 241 is a criminal statute, which does not provide for a private cause of action. Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir.2009) (“To the extent that Appellants assert claims based on the violation of federal criminal statutes, such as 18 U.S.C. §§ 241–242, these claims are not cognizable, as federal criminal statutes do not provide private causes of action.” (citation omitted)); see also Nichairmhaic v. Dembo, No. 13–CV–1184, 2013 WL 6385041, at *5 (D.Conn. Dec. 4, 2013) (dismissing discrimination claim based on Section 241 because “Section 241 is a criminal statute ... and the Second Circuit has held that it does not create a private cause of action.”). Accordingly, to the extent Plaintiffs assert a claim under Section 241, this claim is DISMISSED. VI. RICO *11 Plaintiffs also urge to “consider” a RICO claim based upon alleged “damage against [each Plaintiffs'] person.” (Compl. at 21 n. 9.) However, a plaintiff asserting a RICO violation must plead “(1) the defendant's violation of [18 U.S.C.] § 1962, (2) an injury to the plaintiff's business or property, and (3) causation of the injury by the defendant's violation.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 283 (2d Cir.2006) (citations omitted). Here, not only do Plaintiffs fail to allege any of the elements of a RICO claim, they concede that there is no injury to a business or property. Accordingly, to the extent Plaintiffs assert RICO claim, this claim is DISMISSED. VII. Injunctive and Declaratory Relief As noted, Plaintiffs assert various claims for injunctive and declaratory relief. As an initial matter, to the extent that Smith, Vaiana, Rodriguez, and Maynor seek injunctive or declaratory relief, such claims are DISMISSED AS MOOT because these Plaintiffs have been discharged from the NCCC. See Salahuddin, 467 F.3d at 272 (“[A]n inmate's transfer from a prison facility generally moots claims for declaratory and injunctive relief against officials of that facility.”). This leaves Colon as the only plaintiff who could pursue the Complaint's claims for injunctive and declaratory relief. The Armor Defendants seek to dismiss the claim for a preliminary and permanent injunction because, according to the Armor Defendants, “the purported claims of deliberate indifference do not rise to the level of a constitutional violation, and thus, amount to nothing more than speculative and hypothetical allegations” insufficient to demonstrate a likelihood of success on the merits. (Armor's Br. at 21.) However, the Court has found that Colon has stated a deliberate indifference claim, and thus, it is not readily apparent to the Court that Colon cannot demonstrate a likelihood of success on the merits. The Armor Defendants' motion to dismiss the Complaint's claims for injunctive relief on this ground is therefore DENIED. Nonetheless, the Court does take note that this case was filed on September 6, 2012, and more than two years has elapsed without the filing of a motion for preliminary injunction. The Court therefore seriously questions whether Colon could demonstrate that irreparable harm would result without an injunction in the event that Colon moves for such relief. VIII. Leave to Replead Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 19 of 107
Colon v. County of Nassau, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 The Second Circuit has stated that “[w]hen a motion to dismiss is granted, the usual practice is to grant leave to amend the complaint.” Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir.1999); see also FED. R. CIV. P. 15(a)(2) ( “The court should freely give leave [to amend] when justice so requires.”). “However, a district court has the discretion to deny leave to amend where there is no indication from a liberal reading of the complaint that a valid claim might be stated.” Perri v. Bloomberg, No. 11–CV–2646, 2012 WL 3307013, at *4 (E.D.N.Y. Aug. 13, 2012) (citing Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.2010)). *12 Here, the Court has dismissed Smith's deliberate indifference claim arising out his dental treatment and Plaintiffs' HIPAA, RICO, and conspiracy against rights claims. The Court will not grant leave to replead these claims because amendment would be futile. These claims are DISMISSED WITH PREJUDICE. 5 IX. State Law Claims Finally, the Armor Defendants argue that “since plaintiffs cannot assert a plausible federal-law claim against the Armor Defendants,” the Court should decline to exercise supplemental jurisdiction over the remaining state law claims under 28 U.S.C. § 1367(c)(3). (Armor's Br. at 23.); see 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if ... the district court has dismissed all claims over which it has original jurisdiction ....”). However, the Court has not dismissed all of Plaintiffs' federal claims. Accordingly, the Armor Defendants' motion insofar as it seeks dismissal of the state law claims on jurisdictional grounds is DENIED. 6 CONCLUSION For the foregoing reasons, the Armor Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. Smith's deliberate indifference claim arising out his dental treatment and Plaintiffs' HIPAA, RICO, and conspiracy against rights claims are DISMISSED WITH PREJUDICE. Additionally, the Clerk of the Court is directed to TERMINATE Dr. Omanu as a defendant in this action. Given each Plaintiffs' pro se status, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and therefore in forma pauperis status is DENIED for purposes of an appeal. Coppedge v. United States, 369 U.S. 438, 444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). The Clerk of the Court is directed to mail a copy of this Memorandum and Order to pro se Plaintiffs. SO ORDERED. All Citations Not Reported in F.Supp.3d, 2014 WL 4904692 Footnotes 1 The following facts are taken from the Complaint and are presumed to be true for the purposes of this Memorandum and Order. 2 Plaintiffs filed the Complaint in this action accompanied by applications to proceed in forma pauperis. On October 4, 2012, this Court granted in forma pauperis status to each Plaintiff, with the exception of Plaintiff Daniel Miller (“Miller”), whose application was denied pursuant to the “three strikes” rule under 28 U.S.C. § 1915(g). (Docket Entry 19.) On November 21, 2012, the Court dismissed Miller's claims because he failed to pay his pro rata share of the filing fee. (Docket Entry 23.) He still has not paid the filing fee, and the Court's discussion herein is therefore limited to the claims and allegations of the remaining Plaintiffs. Additionally, the only claims against Defendant Dr. Omanu are those of Miller's. Accordingly, the Clerk of the Court is directed to TERMINATE Dr. Omanu as a defendant in this matter. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 20 of 107
Colon v. County of Nassau, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 3 The page numbers of the Complaint are those generated by the Electronic Case Filing system. 4 The Eighth Amendment prohibits “cruel and unusual punishment.” Thus, “it has been held applicable only to those individuals who have been criminally convicted and sentenced-and are thus being ‘punished’ for something.” Davis v. Cnty. of Nassau, 355 F.Supp.2d 668, 674 (E.D.N.Y.2005). Here, the Complaint does not make clear whether the conduct complained of occurred postconviction or while Plaintiffs were housed at the NCCC as pretrial detainees. The distinction is irrelevant, however, because “[c]laims for deliberate indifference to a serious medical condition or other serious threat to the health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment.” Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir.2009). 5 To the extent that Plaintiffs assert HIPAA, RICO, or conspiracy against rights claims against the County Defendants, such claims are also DISMISSED WITH PREJUDICE because they are futile, notwithstanding the fact that the County Defendants have not moved to dismiss them. 6 The Armor Defendants have not moved to dismiss the state law claims on the merits and the Court therefore does not reach these issues. The Armor Defendants do move to dismiss the Complaint insofar as it “seeks to assert a breach of contract claim by challenging the legality and enforceability of the contract between Nassau County and Armor.” (Armor's Br. at 23.) However, the Court does not read the Complaint to assert a breach of contract claim based on this alleged agreement. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 21 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 949842 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Mark DANIELS, Plaintiff, v. Susan MUELLER, et al., Defendants. No. 23-CV-5654 (LAP) | Signed March 28, 2025 Attorneys and Law Firms Joshua Lee Morrison, Bonjean Law Group, PLLC, Brooklyn, NY, Amy Jane Agnew, Law Office of Amy Jane Agnew, P.C., New York, NY, for Plaintiff. Ian Ramage, NYS Office of the Attorney General, New York, NY, for Defendant Susan Mueller. Ryan Edward Manley, Lauren Nicole Mordacq, Ryan Thomas Donovan, Conway, Donovan & Manley PLLC, Albany, NY, for Defendant Chung Lee. OPINION AND ORDER LORETTA A. PRESKA, Senior United States District Judge: *1 Before the Court are eleven motions for summary judgment filed by various Defendants in the above-captioned case and nine related cases. Plaintiff filed an omnibus brief opposing each motion for summary judgment. (Plaintiff's Amended Memorandum of Law in Opposition to Defendants’ Motions for Summary Judgment (Omnibus), dated February 5, 2024 (“Pl. Opp'n”) [23-CV-5658, dkt. no. 59].) 1 For the reasons set forth below, certain of Defendants’ motions are GRANTED and certain of Defendants’ motions are DENIED. I. Background A. Factual Background The Court assumes familiarity with its decision in related case Allen v. Mueller, No. 23-CV-5651, 2024 WL 3090141 (S.D.N.Y. June 21, 2024). A streamlined version of the relevant facts and procedural history follows. The above-captioned action and the nine related individual actions that this Opinion addresses arise from a class action brought by several named New York State Department of Corrections and Community Supervision (“DOCCS”) inmates on behalf of a class of individuals in DOCCS custody whose medications were denied or discontinued after the institution of the Medications With Abuse Potential (“MWAP”) Policy. See Allen v. Koenigsmann, No. 19- CV-8173, 2023 WL 2731733 (S.D.N.Y. Mar. 31, 2023). 2 (See also Allen I, Plaintiff's Memorandum of Law in Support of Motion for Class Certification, dated May 18, 2022 (“Pl. Class Cert. Br.”) [19-CV-8173, dkt. no. 371] at 14.) 3 DOCCS adopted the MWAP Policy in June 2017. (Defendant Mueller's Local Civil Rule 56.1 Statement of Undisputed Facts, dated November 15, 2023 (“Mueller 56.1 Stmt.: Stewart) [23-CV-5668, dkt. no. 19] ¶ 3.) The MWAP Policy required any DOCCS medical provider who sought to prescribe certain medications to submit an “MWAP Request” to the DOCCS Regional Medical Director (“RMD”) in charge of the medical provider's facility. (See id. ¶ 5.) Before the DOCCS medical provider had authority to prescribe the requested medication for long-term use for chronic conditions, the RMD would have to approve the MWAP Request. (See id.) The stated purpose of the MWAP Policy was to control the prescriptions of medications that DOCCS believed might carry the risk of abuse or dependence by DOCCS inmates. (See Declaration of A.J. Agnew in Opposition to Motion for Summary Judgment, dated December 27, 2023 (“Agnew Decl.”) [23-CV-5657, dkt. no. 29], Ex. 23 [23-CV-5667, dkt. no. 29-25] at 2.) Medications that required RMD approval under the MWAP Policy included Gabapentin (Neurontin), Lyrica (Pregabalin), Baclofen, Flexeril (Cyclobenzaprine), Ultram (Tramadol), Percocet, and Oxycodone. (See Mueller 56.1 Stmt.: Stewart ¶ 6.) DOCCS rescinded the MWAP Policy on February 8, 2021. (See State Represented Defendants’ Local Civil Rule 56.1 Statement of Undisputed Facts, dated November 16, 2023 (“SRD 56.1 Stmt.: Gradia”) [23- CV-5660, dkt. no. 24] ¶ 6.) *2 Plaintiffs in the class action asserted claims under 42 U.S.C. § 1983 alleging deliberate indifference to their medical needs due to DOCCS's implementation of the MWAP Policy and the discontinuation and denial of their medications that ensued. (Allen I, Second Amended Complaint, dated December 12, 2020 [19-CV-8173, dkt. no. 256] at 137-39.) Plaintiffs moved for class certification and for a preliminary Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 22 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 injunction seeking relief from the ongoing effects of the MWAP Policy, arguing that DOCCs was continuing to deny effective treatment to patients who had lost their medications due to the MWAP Policy. (Allen I, Class Cert. Br. at 14; Allen I, Plaintiff and Plaintiff-Intervenors’ Memorandum of Law in Support of Motion for Injunctions, dated May 31, 2022 [19- CV-8173, dkt. no. 378] at 8-9.) On March 31, 2023, this Court issued an Opinion granting the Allen I plaintiffs’ motion to certify a class to pursue injunctive relief but denying the plaintiffs’ motion to certify a class to pursue damages for liability. See Allen I, 2023 WL 2731733, at *6. The Court held that plaintiffs in Allen I had failed to show that the proposed “liability class” had standing to sue under Article III of the United States Constitution. See id. at *2. Also on March 31, 2023, the Court granted the Allen I plaintiffs’ motion for a preliminary injunction, determining plaintiffs had demonstrated ongoing constitutional violations, including medically unjustified discontinuations of MWAP treatment, and a likelihood of imminent future harm across the class. Allen I, No. 19-CV-8173, 2023 WL 2752375, at *6 (S.D.N.Y. Mar. 31, 2023). After a four-day bench trial, this Court converted the preliminary injunction into a permanent injunction, concluding that remedying the constitutional violations in DOCCS’ pain management practices outweighed the administrative challenges DOCCS would face in implementing a permanent injunction. Allen I, 700 F. Supp. 3d 110, 145 (S.D.N.Y. 2023). The Court then awarded attorneys’ fees to Plaintiffs’ counsel. (Allen I, Order, dated February 22, 2024 [19-CV-8173, dkt. no. 850].) Recently, the Court of Appeals affirmed this Court's decision to grant a permanent injunction and award Plaintiffs’ counsel attorneys’ fees. Daniels et al. v. Moores, No. 24-30, 2025 WL 883035 (2d Cir. Mar. 21, 2025) (summary order). The Court of Appeals credited the Court's determination that “the MWAP Policy was still de facto in place, despite being formally rescinded, because prisoners in DOCCS custody continued to have their MWAP medications systematically denied without medical justification and without regard to medical need.” (Id. at 6.) In addition, the Court of Appeals found no error in the Court's conclusion that Plaintiffs suffered Eight Amendment violations and therefore irreparable harm. (Id. at 7.) In so holding, the Court of Appeals reiterated that “a deliberate indifference claim can lie where prison officials deliberately ignore the medical recommendations of a prisoner's treating physicians” and where defendants “reflexively rel[ied] on ... the substance abuse policy when they had been put on notice that the medically appropriate decision could be, instead, to depart from the [policy] and prescribe [the medication] to the plaintiff.” (Id. at 9 (citing Johnson v. Wright, 412 F.3d 398, 404, 406 (2d Cir. 2005).) Following this Court's denial of certification of a “liability class,” various plaintiffs filed individual suits for damages against various DOCCS employees, including RMDs, physicians, and nurse practitioners (“NPs”). (See, e.g., Amended Complaint as Severed from Allen I, filed June 30, 2023 (“AC: Daniels”) [23-CV-5654, dkt. no. 1] at 3-5.) Similar to the allegations made in the class action, these plaintiffs each alleged violations of 42 U.S.C. § 1983 based on deliberate indifference to their medical needs. (See, e.g., id. ¶¶ 349-72.) On June 21, 2024, the Court issued its first decision in one of the individual lawsuits, granting in part and denying in part defendants’ motion for summary judgment. Allen v. Mueller, 2024 WL 3090141 at *1. *3 The Court's instant Opinion addresses the claims of ten plaintiffs: Plaintiffs Mark Daniels, Shannon Dickinson, Aaron Dockery, John Gradia, Angel Hernandez, Hugh Knight, Terry Mathis, Sean Pritchett, Felipe Rivera-Cruz, and Wayne Stewart. In each of these ten individual actions for damages, certain Defendants move for summary judgment to dismiss the claims against them, totaling eleven motions for summary judgment. Specifically, Defendants Dr. Susan C. Mueller, Dr. David Dinello, Dr. John Hammer, and NP Kristin Salotti (collectively the “State Represented Defendants” or “SRDs”) have filed motions for summary judgment in nine of the ten actions. 4 In addition, Defendants Dr. Kathleen Mantaro (23-CV-5661, dkt. no. 24) and Dr. Chung Lee (23- CV-5662, dkt. no. 12) have each filed a motion for summary judgment in a single action where they are named as a defendant. II. Legal Standard Summary judgment is appropriate where the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “ ‘It is the movant's burden to show that no genuine factual dispute exists.’ ” I.M. v. United States, 362 F. Supp. 3d 161, 189 (S.D.N.Y. 2019) (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 23 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 244 (2d Cir. 2004)). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “On a motion for summary judgment, a fact is material if it ‘might affect the outcome of the suit under the governing law.’ ” Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene of the City of N.Y., 746 F.3d 538, 544 (2d Cir. 2014) (quoting Liberty Lobby, Inc., 477 U.S. at 248). “ ‘In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim.’ ” In re AXA Equitable Life Ins. Co. COI Litig., 595 F. Supp. 3d 196, 215 (S.D.N.Y. 2022) (quoting Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)). In ruling on a motion for summary judgment, a court must “construe the facts in the light most favorable to the non- moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quotation marks and citations omitted). “If the movant meets its burden, ‘the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.’ ” Kayo v. Mertz, 531 F. Supp. 3d 774, 787 (S.D.N.Y. 2021) (quoting Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)). “The non-moving party ‘cannot defeat the motion by relying on the allegations in [its] pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible.’ ” In re AXA, 595 F. Supp. 3d. at 215 (quoting Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996)). The non-moving party must “create more than a ‘metaphysical’ possibility that his allegations [a]re correct; he need[s] to ‘come forward with specific facts showing that there is a genuine issue for trial.’ ” Wrobel v. Cnty. of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)). III. Applicable Law A. Eighth Amendment *4 The Eighth Amendment to the United States Constitution prohibits government officials from inflicting “cruel and unusual punishments” on those in their care. U.S. Const. amend. VIII. Pursuant to the right to be free from cruel and unusual punishments, the Eighth Amendment prohibits prisons officials from acting with “deliberate indifference to serious medical needs of prisoners[.]” Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official can be held liable for deliberate indifference in violation of the Eighth Amendment “only when two requirements are met.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006) (internal quotations and citations omitted), abrogated in part on other grounds by Kravitz v. Purcell, 87 F.4th 111 (2d Cir. 2023). The first requirement the plaintiff must meet “is objective: the alleged deprivation of adequate medical care must be ‘sufficiently serious.’ ” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The second requirement “is subjective: the charged official must act with a sufficiently culpable state of mind.” Id. at 280. Put differently, a plaintiff “must show, for each defendant, that the defendant acted with deliberate indifference to [his] medical needs.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003) (citing Estelle, 429 U.S. at 104). Satisfying the objective prong entails two inquires. First, the Court must assess “whether the prisoner was actually deprived of adequate medical care.” Salahuddin, 467 F.3d at 279. The second part of the objective inquiry asks whether the deprivation or inadequacy of the plaintiff's medical care is “sufficiently serious.” Id. at 280. Determining if the deprivation of medical care is sufficiently serious is “necessarily contextual and fact-specific” which requires “tailor[ing] [it] to the specific circumstances of each case.” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) (cleaned up) (internal quotations and citations omitted). This includes examining the plaintiff's claim differently depending on whether he alleges the prison officials completely “fail[ed] to provide any treatment for [his] medical condition” or alleges only that the medical treatment he received was inadequate. See Salahuddin, 467 F.3d at 280. If the former, the Court must “examine whether the inmate's medical condition is sufficiently serious.” Id. at 280 (emphasis added). Certain factors courts consider when evaluating the seriousness of a medical condition include whether “a reasonable doctor or patient would find [the condition] important and worthy of comment or treatment,” whether the condition “significantly affects an individual's daily activities,” or “the existence of chronic and substantial pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotations and citations omitted). If, however, the Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 24 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 plaintiff alleges only “inadequacy [ ] in the medical treatment [he was] given, the seriousness inquiry is narrower.” Salahuddin, 467 F.3d at 280. Instead of determining the seriousness of the plaintiff's underlying condition, the Court must focus its inquiry “on the challenged delay or interruption in treatment[.]” Id. (citing Smith, 316 F.3d at 185). Such inquiry requires the Court to examine “the particular risk of harm” the plaintiff faced as a result of the deprivation, “rather than the severity of the [plaintiff's] underlying medical condition[.]” Smith, 316 F.3d at 186. *5 Accordingly, the Court inquires how serious the plaintiff's underlying medical condition is if he alleges he was entirely denied care, whereas it must assess the “particular risks attributable” to a provision of allegedly insufficient care or the “severity of [a] temporary deprivation” in care if that is the deprivation the plaintiff alleges. Id. at 186-87 (emphasis added). To satisfy the subjective prong, i.e., to prove a prison official was deliberately indifferent to his or her medical needs, a plaintiff must “show that a particular defendant ‘knows of and disregards an excessive risk to inmate health or safety.’ ” Brock, 315 F.3d at 164 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). This standard is akin to a mental state of subjective recklessness, as used in criminal law. See Salahuddin, 467 F.3d at 280. The plaintiff may demonstrate the defendant's knowledge either by proving the official had actual knowledge of the risks to the plaintiff's health or by proving “that the risk was obvious or otherwise must have been known to [the] defendant[.]” Brock, 315 F.3d at 164. B. Personal Involvement Plaintiffs assert their Eighth Amendment claims pursuant to 42 U.S.C. § 1983. (See, e.g., AC: Daniels ¶¶ 349-80.) To prevail on a § 1983 claim for a constitutional violation, “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, 618 (2d Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Thus, to establish a particular defendant's liability, Plaintiffs must “establish that [the particular defendant] violated the Eighth Amendment by [his or her] own conduct, not by reason of [his or her] supervision of others who committed the violation” and that each particular defendant “knew of and disregarded an excessive risk to [Plaintiffs’] health or safety.” Id. at 619 (citing Vega v. Semple, 963 F.3d 259, 273 (2d Cir. 2020)). Such personal involvement requires “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[.]” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). C. Qualified Immunity The Supreme Court has held that “[g]overnment officials are entitled to qualified immunity [from liability] with respect to ‘discretionary functions’ performed in their official capacities.” Ziglar v. Abbasi, 582 U.S. 120, 150 (2017) (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). Whether a government official can invoke qualified immunity “turns on the ‘objective legal reasonableness’ of the official's acts.” Id. at 151 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)). The reasonableness of the official's actions “must be ‘assessed in light of the legal rules that were clearly established at the time [the action] was taken.’ ” Id. (quoting Creighton, 483 U.S. at 639). To determine whether the official violated rights that were “clearly established,” the Court “must ask whether it would have been clear to a reasonable officer that the alleged conduct was unlawful in the situation he confronted.” Id. at 151-52 (internal quotations and citations omitted). “[I]f a reasonable officer might not have known for certain that the conduct was unlawful[,] then the officer is immune from liability.” Id. As the Supreme Court phrased differently in a previous case, the “right must be sufficiently clear that every reasonable official would have understood that what he [was] doing violate[d] that right.” Taylor v. Barkes, 575 U.S. 822, 825 (2015) (internal quotations and citations omitted). *6 When confronted with the qualified immunity defense, the Court must determine the scope of the right that the plaintiff asserts was clearly established and that the official violated. There need not exist “a case directly on point” that addresses facts perfectly analogous to the instant case before the Court, “but existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (internal quotations and citations omitted). In other words, “the precise conduct at issue need not previously have been ruled unlawful” for the Court to conclude that the right was clearly established. Griffin v. Amatucci, 611 F. App'x 732, 734 (2d Cir. 2015) (summary order) (citing Zahrey v. Coffey, 221 F.3d 342, 357 (2d Cir. 2000)). As the Court of Appeals has noted in the specific context of claims of deliberate indifference in violation of the Eighth Amendment, Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 25 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 assertions of qualified immunity “are not analyzed body-part by body-part” or with “specificity as to the site and cause of pain[.]” Collymore v. Myers, 74 F.4th 22, 30 (2d Cir. 2023). Such a “restricted view of the right” alleged to have been violated would be unnecessarily narrow in determining whether the right was clearly established at the time of its alleged violation. See LaBounty v. Coughlin, 137 F.3d 68, 74 (2d Cir. 1998). On the other hand, “the clearly established right must be defined with specificity,” and the “dispositive question is whether the violative nature of particular conduct is clearly established.” Vega, 963 F.3d at 275 (emphasis in original) (internal quotations and citations omitted). Accordingly, the Court must undertake this inquiry “in light of the specific context of the case, not as a broad general proposition.” Id. In the context of claims for deliberate indifference, this means “ ‘sufficiently serious’ medical conditions ‘should not be defined at a high level of generality.’ ” Collymore, 74 F.4th at 30 (quoting White v. Pauly, 580 U.S. 73, 79 (2017)). IV. Discussion The Court will evaluate the eleven summary judgment motions by individual plaintiff. 5 A. Plaintiff Daniels’ Claim for Deliberate Indifference State Represented Defendant Dr. Susan Mueller moves for summary judgment to dismiss the claim against her brought by Plaintiff Daniels. (23-CV-5654, dkt. no. 14.) Plaintiff Daniels received lower back and spinal fusion surgery in 2015. (Declaration of Ian Ramage, dated November 15, 2023 (“Ramage Decl.: Daniels”) [23- CV-5654, dkt. no. 17], Ex. E (April 5, 2022 Deposition of Mark Daniels) [23-CV-5654, dkt. no. 17-5] ¶¶ 26:23-25.) Following additional back surgery (id. ¶¶ 49:3-18), Plaintiff Daniels was sent to multiple neurologists for consultation during 2017, (see Ramage Decl.: Daniels, Ex. J [23-CV-5654, dkt. no. 17-10] at MD 000406, 000390, 000384, 000381.) To manage his pain, Plaintiff Daniels was prescribed Neurontin as early as May 2012. (Report of Dr. Adam Carinci, dated May 8, 2022 (“Carinci Rpt.” [19-CV-8173, dkt. nos. 348-362], dkt. no. 349-32 at 3.) His records also reflect failed treatment with Tramadol, Naproxen, Ultram, Flexeril, and physical therapy. (Id.) Following an MRI, Dr. Joseph L. Racanelli on December 15, 2016, recommended that Plaintiff Daniels remain on Gabapentin. (Carinci Rpt., dkt. no. 349-35 at M Daniels 119-20.) On March 16, 2017, Plaintiff reported “neck, hands and back pain,” “numbness,” and the Gabapentin “hasn't helped at all, if anything it's worse.” (Id. at M Daniels 122.) On April 14, 2017, Plaintiff refused Neurontin, saying it was “making [him] sick.” (Carinci Rpt., dkt. no. 349-36 at M Daniels 124.) On June 8, 2017, a few days after the MWAP Policy was promulgated, Dr. Chung Lee at Shawangunk Correctional Facility submitted an MWAP request seeking approval for a continuing prescription of Neurontin. (Id. at M Daniels 129-32.) Defendant Mueller states that she reviewed Plaintiff's medical history on DOCCS’ FHS1 computer system and learned that Plaintiff Daniels was still being treated by neurosurgery specialists following his spinal surgery. (See Declaration of Dr. Susan C. Mueller, dated November 15, 2023 (“Mueller Decl.: Daniels”) [23-CV-5654, dkt. no. 16] ¶¶ 29-31.) Neurology specialists recommended that Plaintiff Daniels be prescribed Neurontin. (Id. ¶ 31.) Defendant Mueller approved Dr. Lee's request to continue Plaintiff Daniel's Neurontin, noting “no EMG. Will approve until EMG obtained for presumptive dx.” (Carinci Rpt., dkt. no. 349-36 at M Daniels 136.) *7 Plaintiff Daniels complained that at some time between late July and September of 2017, his Neurontin was discontinued. (AC: Daniels ¶ 312.) Dr. Mueller states that she did not discontinue Plaintiff's Neurontin and that she was not notified that it had been discontinued. (Mueller Decl.: Daniels ¶¶ 38-39.) In his opposition to the motion, Plaintiff Daniels makes no mention of the 2017 MWAP request (see Pl. Opp'n at 25), so he has waived this claim. On September 12, 2017, Dr. Lee began prescribing Cymbalta for Plaintiff Daniels. (AC: Daniels ¶ 316.) On December 13, 2018, Dr. Nicole Lostritto, an outside neurosurgeon, performed an electromyography (EMG) on Plaintiff noting that he was taking Cymbalta instead of Neurontin for his pain and recommended: “In addition to his Cymbalta, Baclofen could be trialed to help address his spasticity and modulate pain receptors.” (Carinci Rpt., dkt. no. 349-36 at M Daniels 144.) Plaintiff also complains that an MWAP request submitted on March 12, 2018 by Dr. Lee for Lyrica was not approved by Dr. Mueller. (See AC: Daniels ¶¶ 325-26; Ramage Decl.: Daniels, Ex. D [23-CV-5654, dkt. no. 17-4] at MD 00005-06).) However, Dr. Mueller states that she never received this Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 26 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 MWAP request and did not review it or disapprove it. (Mueller Decl.: Daniels ¶¶ 41-42.) Other than the March 12, 2018 MWAP request for Lyrica from Dr. Lee to Dr. Mueller (Carinci Rpt., dkt. no. 349-36 at M Daniels 147-48), the Court is unable to locate any emails or other correspondence from Dr. Lee to Dr. Mueller regarding the 2018 MWAP request for Lyrica or any entry in Plaintiff's medical record regarding this request. With respect to the 2018 MWAP request, Plaintiff Daniels faults Dr. Mueller because Dr. Lee submitted the MWAP request for Lyrica to Dr. Mueller and Plaintiff never received the medication. (Pl. Opp'n at 25; see also Plaintiff's Response to Defendant's Statement of Undisputed Facts and Plaintiff's Statement of Additional Material Facts Precluding Summary Judgment, dated January 5, 2023 (“PSUF: Daniels”) [23- CV-5654, dkt. no. 28] ¶ 105.) While this might indeed be true, as noted above, there is no evidence in the record to support any personal involvement by Dr. Mueller in the 2018 MWAP request. Plaintiff Daniels testified that his Lyrica request was denied by “Albany.” (Ramage Decl.: Daniels, Ex. E ¶¶ 146:4-5.) However, he also testified, “I can't say whose decision it was. I just know that I didn't get it.” (Id. ¶¶ 147:5-6.) That Dr. Mueller was the assigned RMD at the time is insufficient as a basis for finding any personal involvement on her part. In addition, it is insufficient as a basis for any subjective intent on the part of Dr. Mueller. Accordingly, Dr. Mueller's motion for summary judgment as to Plaintiff Daniels’ claim of deliberate indifference (23-CV-5654, dkt. no. 14) is granted. B. Plaintiff Dickinson's Claim for Deliberate Indifference State Represented Defendant Dr. Susan Mueller moves for summary judgment to dismiss the claim against her brought by Plaintiff Dickinson. (23-CV-5654, dkt. no. 14.) As Dr. Carinci related: Mr. Dickinson arrived at DOCCS on November 15, 2016 [ ]. X-rays taken on December 20, 2016 showed mild spondylosis at C6-7 of his cervical spine with bullet fragments and impingement in his right shoulder. [ ] An x-ray of Mr. Dickinson's left hip taken on March 30, 2017 showed mild degenerative joint disease which was more prominent in his left than right hip. [ ] On December 19, 2016, DOCCS transferred Mr. Dickinson to Shawangunk Correctional Facility. Dr. Chung Lee was assigned as his medical provider. The records are not clear, but it seems that Dr. Lee continued Mr. Dickinson's Baclofen and Ultram prescriptions and changed Lyrica to Neurontin 600 mg twice a day. [ ] Mr. Dickinson began physical therapy on May 24, 2017 to address his shoulder impingement. [ ] Dr. Ehab Essa, the physical therapist, reported that he tolerated the session well but reported that he suffered from back pain. *8 (Carinci Rpt., dkt. no. 350-8 at 3.) Plaintiff Dickinson's pain had been managed successfully with Ultram, Flexeril, Lyrica, and Baclofen since at least 2012. (Id.) Following MWAP, all Plaintiff Dickinson's medications were discontinued. A June 19, 2017 EMG study showed Plaintiff Dickinson suffered from abnormal motor and sensory responses and with sensorimotor neuropathy. (Carinci Rpt., dkt. no. 350-9 at S. Dickinson 077-80.) Dr. Lee submitted two MWAP requests for Ultram and Baclofen. (Id. at S. Dickinson 082-88.) In denying the MWAP requests for Baclofen, Dr. Mueller merely stated, “please see policy regarding use of muscle relaxants.” (Id. at S. Dickinson 085.) With respect to the Ultram request, she questioned how Plaintiff Dickinson's gunshot wound from 1990 and resulting paraplegia would cause pain and recommended pain management. (Id. at S. Dickinson 088.) In her declaration, however, Dr. Mueller stated essentially that Plaintiff Dickinson had not undergone any diagnostic testing and that in her medical judgment “Baclofen[ ] is not effective for treating muscle spasms.” (Declaration of Dr. Susan C. Mueller, dated November 15, 2023 (“Mueller Decl.: Dickinson”) [23-CV-5657, dkt. no. 16] ¶ 26.) She also opined that in her medical judgment “the requested prescription for Ultram was not appropriate due to an absence of any indication or complaint of pain by Plaintiff.” (Id. ¶ 41.) Dr. Mueller added that she did not approve the request for Ultram because she “did not know what pain the requested Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 27 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 medication would be treating, as Plaintiff is insensate.” (Id. ¶ 42.) On August 8, 2017, Dr. Lee submitted an MWAP request for Neurontin to treat “spinal cord [injury], [due to gunshot wound,] paraplegia, sensorimotor neuropathy” with eleven refills. (Carinci Rpt., dkt. no. 350-10 at S. Dickinson 104-06.) In her response to the MWAP request, Dr. Mueller cited no patient-specific information but merely instructed Dr. Lee to find safer alternatives. (Id. at S. Dickinson 106.) Dr. Mueller approved only a 30-day prescription for Neurontin. (Id.) In her declaration, however, Dr. Mueller stated that “the potential risks of long-term treatment with Neurontin are such that there are safer treatment strategies and medications that should first be tried to manage Plaintiff's neuropathy.” (Mueller Decl.: Dickinson ¶ 51.) On August 9, 2017, Plaintiff Dickinson saw a neurologist, Dr. Matthew Murnane, who noted that Lyrica had helped Plaintiff's pain and that Plaintiff Dickinson was then “put on a low dose of [Neurontin] but it was stopped for unclear reasons and higher dose not tried.” (Carinci Rpt., dkt. no. 350-8 at 3; Carinci Rpt., dkt. no. 350-10 at S. Dickinson 107.) Dr. Murnane recommended that Plaintiff Dickinson try Elavil but if it failed, to retry Neurontin at a higher dose and increase Baclofen. (Carinci Rpt., dkt. no. 350-8 at 3; Carinci Rpt., dkt. no. 350-10 at S. Dickinson 107-10.) In light of the expert's recommendation, Dr. Lee submitted another MWAP request on August 15, 2017 for Baclofen and Neurontin. (Carinci Rpt., dkt. no. 350-10 at S. Dickinson 112-119.) In her response denying the MWAP, Dr. Mueller again referred to the muscle relaxant policy and the MWAP policy. (Carinci Rpt., dkt. no. 350-8 at 3; Carinci Rpt., dkt. no. 350-10 at S. Dickinson 114.) In her declaration, Dr. Mueller states that in her medical training and experience, Baclofen is “not effective for treating muscle spasms and is instead used to treat muscle spasticity.” (Mueller Decl.: Dickinson ¶ 60.) Thus, she found the prescription for Baclofen inappropriate. (Id. ¶ 64.) *9 Consistent with the expert's recommendation, Dr. Lee then tried Elavil but discontinued it two weeks later because Plaintiff Dickinson stated it made him excessively sleepy and was not effective for his pain. (Carinci Rpt., dkt. no. 350-8 at 4; Carinci Rpt., dkt. no. 350-10 at S. Dickinson 125-30.) On September 27, 2017, Dr. Lee made another MWAP request for Neurontin which Dr. Mueller denied (Carinci Rpt., dkt. no. 350-8 at 4; Carinci Rpt., dkt. no. 350-10 at S. Dickinson 134-36), directing Dr. Lee “to the televideo and handouts from 8/17/17” (Carinci Rpt., dkt. no. 350-8 at 4; Carinci Rpt., dkt. no. 350-10 at 136). In her declaration, however, Dr. Mueller stated that “in my medical judgment, Plaintiff would benefit in the long run from safer medical alternatives to Neurontin.” (Mueller Decl.: Dickinson ¶ 73.) Based on the record before the Court, there is a question of fact as to whether Dr. Mueller exercised her medical judgment in denying the MWAP requests—as she stated in her post- litigation declaration—or whether she relied reflexively on the MWAP policies—as stated in her denials of the MWAP requests. As in Ippolito v. Goord, a jury could find that Dr. Mueller acted with deliberate indifference by “reflexively rely[ing] on the purported [medical] soundness of the [MWAP policy] itself, even where [she was] on notice” by Plaintiff's past successful treatment with MWAP medications and the recommendation of outside experts and prison doctors “that a departure [from the MWAP policy] might be medically appropriate.” No. 05-CV-6683, 2012 WL 4210125, at *13 (W.D.N.Y. Sept. 19, 2012) (internal quotations omitted); see also Johnson, 412 F.3d at 406. Accordingly, Dr. Mueller's motion for summary judgment as to Plaintiff Dickinson's claim for deliberate indifference (23-CV-5657, dkt. no. 14) is denied. C. Plaintiff Dockery's Claim for Deliberate Indifference State Represented Defendants Drs. Susan Mueller, John Hammer, David Dinello, and NP Kristin Salotti move for summary judgment to dismiss the claims against them brought by Plaintiff Dockery. (23-CV-5658, dkt. no. 22.) As set out at length in Dr. Carinci's expert report, Plaintiff was diagnosed with Multiple Sclerosis (“MS”) in 2016 while in DOCCS custody. (Carinci Rpt., dkt. no. 351-1 at 3-8.) MRIs confirmed the findings, and various expert neurologists recommended treatment with MWAP medications. (See id.) Plaintiff Dockery complains about NP Salotti but did not respond to her motion for summary judgment. (See Pl. Opp'n at 28-31.) Accordingly, the claims against NP Salotti are deemed abandoned, and she is entitled to judgment. With respect to Dr. Hammer, Plaintiff Dockery concedes that Dr. Hammer spoke to Plaintiff's provider, Dr. Gusman, and approved the provider's prescription for Neurontin for ten days, albeit with a change in dosage. (Plaintiff's Response to Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 28 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 Defendant's Statements of Undisputed Facts and Plaintiff's Statement of Additional Material Facts Precluding Summary Judgment, dated January 5, 2023 (“PSUF: Dockery”) [23- CV-5658, dkt. no. 43] at 22-23.) As Dr. Hammer explained in his Declaration, he reviewed the MWAP request for ten days of Neurontin 900 mg bid and discussed Plaintiff Dockery with Dr. Gusman, Plaintiff's new provider at Shawangunk Correctional Facility. (Declaration of Dr. John Hammer (“Hammer Decl: Dockery”) [23-CV-5658, dkt. no. 25] ¶¶ 17-28.) Dr. Hammer noted that the discharge order from Albany Medical Center the prior month recommended Neurontin 900 mg in the a.m. and 1800 mg qHS and that Dr. Gusman stated that “he intended to investigate and possibly adjust the dosage given to Plaintiff after this ten-day period.” (Id. ¶ 19.) Dr. Hammer also noted that the dosage recommend by Albany Medical Center was unusual. (Id. ¶¶ 22-26.) Accordingly, Dr. Hammer approved the MWAP request for 10 days of Neurontin 900 mg, bid, “to ensure continuity of care for this patient.” (Id. ¶ 21.) On this record, no jury could find Dr. Hammer to have been deliberately indifferent to Plaintiff Dockery's needs. Accordingly, Dr. Hammer is entitled to judgment. *10 With respect to Dr. Mueller, Plaintiff Dockery complains that she denied Dr. Lee's August 8, 2018 MWAP request for Neurontin. (Amended Complaint as Severed from Allen I, filed June 30, 2023 (“AC: Dockery”) ¶¶ 328-29.) In his MWAP request, Dr. Lee noted: Offender was transferred from COX infirmary RMU. Was consulted to Dr. Koenigman [sic] for [N]eurontin & approved. [MRI] confirmed presence of multiple subcortical white matter lesions. Neurontin discontinued on 7-2018. [N]ow, offender can't sleep × several days, d/t pain & hands/ foot neuropathy, used walker for ambulatory, used to walk without walker, tried w/[E]lavil, [T]egretol, [S]ymbalta not effective. (Declaration of Michael J. Keane, filed November 15, 2023 (“Keane Decl.: Dockery”) [23-CV-5658, dkt. no. 29], Ex. X [23-CV-5658, dkt. no. 29-24] at 2.) Dr. Mueller denied the request stating: Does not have EMG diagnostic of peripheral neuropathy. Has recent Tier 3 convictions for drug use most recently as 7/20/18. According to medical staff does not appear to be in pain, but rather malingering and drug seeking, strongly muscled. Started bringing walker to medical unit after Neurontin stopped last month. For how long and what dates were above-noted medications used? Need supportive diagnostics. Suggest alternative safer treatment modalities for this patient who is presently abusing illicit drugs. (Id. at 3.) Had Dr. Mueller actually reviewed Plaintiff Dockery's medical records, she would have seen that: 1) His 2016 MRIs showed brain lesions and a demyelinating process (Carinci Rpt., dkt. no. 351-1 at 1; see also id. at A Dockery 001-04); 2) Consulting neurologist Antonio Culebras suggested Neurontin (id. at 3); 3) DOCCS providers treated Plaintiff with Neurontin (id. at 3); 4) Plaintiff's June 17, 2017, MRI showed similar demyelinating features (id.; see also id. at A Dockery 011); 5) On June 20, 2017, Plaintiff reported “symptoms worsening” with the warmer weather and thus requested an increase in his Neurontin or a change in medication (id. at 3; see also id. at A Dockery 012); 6) Following the promulgation of MWAP policy, Plaintiff's Neurontin was ordered tapered on June 20, 2017 (id. at 3; see also id. at A Dockery 012); 7) On July 28, 2017, Plaintiff was admitted to the infirmary at Coxsackie due to his MS symptoms (id. at 3); Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 29 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 8) Dr. Kathleen Mantaro submitted an MWAP request for Neurontin which Dr. Mueller approved for 30 days (id.; see also id. at A Dockery 022-24); 9) Neurology consultant Dr. Eric Molho suggested that Plaintiff's Neurontin be increased because of worsening symptoms (Carinci Rept., dkt. no. 351-2, at 3; id. at Dockery 029), for which Dr. Miller submitted an MWAP request which was denied by Dr. Dinello on September 15, 2017 (id. at 3; id. at A Dockery 030-35); 10) On September 21, 2017, upon discharge from the Albany Medical Center emergency room, the attending physician wrote: Diagnostic Impression. Seems as if the patient's symptoms began to increase as the patient's Gabapentin was taken off. I do believe that the symptoms are directly related to the fact that the patient is no longer Gabapentin [sic], and I do believe it is medically necessary for the patient to receive this medication as prescribed by his neurologist. I did speak with the deputy superintendent of the jail who told me that [G]abapentin has been taken off of all inmates in this region and that this patient was deemed to not require it by the regional medication director.... I recommend that [G]abapentin is restarted at 600mg twice a day and that the patient see the facility neurologist in the next week for discussion regarding dosage. *11 (Carinci Rpt., dkt. no. 351-2 at A Dockery 044.) Drs. Miller and Mantaro submitted an MWAP request for Neurontin citing Plaintiff's emergency room visit and neurology recommendations (id. at A Dockery 045A-48), but Dr. Mueller denied the request, suggesting Lyrica instead (Carinci Rpt., dkt. no. 351-3 at A Dockery 053); 11) Plaintiff grieved these issues (Carinci Rpt., dkt. no. 350-1 at 4), and when Dr. Miller submitted an MWAP request directly to Chief Medical Officer (“CMO”) Karl Koenigsmann for Neurontin, Dr. Koenigsmann approved a 30-day supply (Carinci Rpt., dkt. no. 351-3 at A Dockery 065-68); 12) On January 11, 2018, Plaintiff was admitted to Albany Medical Center with an MS flare-up and was treated with Neurontin and a short term of Ultram (Carinci Rpt., dkt. no. 351-1 at 4); 13) On January 17, 2018, Plaintiff was discharged to Coxsackie with orders for Neurontin, among other medications, some of which were tried, but Plaintiff still had trouble walking (id. at 4-5); 14) In February of 2018, upon transfer to Shawangunk Correction Facility, provider Dr. Gusman prescribed a five-day emergency supply of Neurontin and submitted an MWAP for Neurontin which was approved by RMD Hammer for ten days (id. at 5; Carinci Rpt., dkt. no. 351-4 at A Dockery 106-08 ¶¶ 30-32); 15) After eight days in the infirmary, provider Dr. Lee submitted an MWAP request for Neurontin explaining that all outside neurologists had approved this treatment which had indeed worked to prevent flare-ups. (Carinci Rpt., dkt. no. 351-5 at A Dockery 112-13.) Dr. Mueller suggested sending this request to Dr. Koenigsmann (id. at A Dockery 115), who approved it with a dosing change (id. at A Dockery 119-20); 16) On February 18, 2018, Plaintiff saw neurologist Octavian Adam who recommended an increase in Plaintiff's Neurontin. (Id. at A Dockery 122.) While the increase was not effectuated, when Plaintiff's Neurontin prescription was set to run out, Dr. Lee submitted another MWAP request for it to Dr. Mueller who did not approve it, citing “nothing supporting use of Neurontin” (id. at A Dockery 129-31); 17) Plaintiff grieved this denial arguing that he had already suffered traumatic flare-ups as a result of being taken off this medication (id. at A Dockery 133); 18) Upon discontinuation of Neurontin, Plaintiff Dockery began experiencing severe pain and discomfort, and on August 10, 2018, Dr. Lee submitted yet another MWAP request for Neurontin which Dr. Mueller denied, omitting any mention of Plaintiff's MS (id. at A Dockery 135-37); 19) In December of 2018, Plaintiff Dockery's MRI revealed new “brain lesions and progression of his MS,” but he was still not being treated for his pain and symptoms (Carinci Rpt., dkt. no. 351-1 at 5-6). Based on this record, there is a question of fact as to whether Dr. Mueller exercised her judgment in denying the MWAP request or whether she relied reflexively on the MWAP policy. While it is true that Plaintiff Dockery received a disciplinary Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 30 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 ticket on July 20, 2018 for smoking marijuana (id. at 3), all of the outside specialists and the DOCCS providers treating Plaintiff recommended Neurontin, and Neurontin had proved effective in treating Plaintiff's symptoms. As in Ippolito, a jury could find that Dr. Mueller acted with deliberate indifference by “reflexively rely[ing] on the purported [medical] soundness of the [MWAP policy] itself, even where [she was] on notice” by Plaintiff's past successful treatment with MWAP medications and the recommendation of outside experts and prison doctors “that a departure [from the MWAP policy] might be medically appropriate.” 2012 WL 4210125, at *13 (internal quotations omitted); see also Johnson, 412 F.3d at 406. Accordingly, Dr. Mueller's motion for summary judgment as to Plaintiff Dockery's claim for deliberate indifference (23-CV-5658, dkt. no. 22) is denied. *12 With respect to Dr. Dinello, Plaintiff Dockery complains that the doctor refused to approve his Neurontin prescription on September 14, 2017. (AC: Dockery ¶ 294.) In so doing, Dr. Dinello stated “the [Neurontin] has not been approved as there is insufficient medical justification to continue its use. Please see the MWAP Request Form for additional information.” (Keane Decl.: Dockery, Ex. Q [23-CV-5658, dkt. no. 29-17] at Aaron Dockery 031.) In his declaration, however, Dr. Dinello states: I did see some support for the use of Neurontin in the records I reviewed for this patient. Specifically, it appeared that a neurologist had recommended Neurontin for reported episodes of trigeminal irritation in 2016. However, it appeared that no diagnostic tests had been performed to determine the cause or extent of the neuropathy. There were safer pain medications that did not appear to have been tried. The most recent recommendation from a neurologist was to treat with either Tegratol, which Dr. Miller reported had not been effective and was causing unacceptable side effects, or Lyrica, which did not appear to have been tried. And crucially to my mind, the medical records indicated that the patient had recently reported that 600 mg of Neurontin bid, as requested in the MWAP request, was NOT effective in controlling his pain. (Declaration of Dr. David S. Dinello (“Dinello Decl.: Dockery”) [23-CV-5658, dkt. no. 24] ¶ 29.) With respect to Dr. Dinello's report that Plaintiff stated the Neurontin was not effective in controlling his pain, the actual medical record entry states “requesting an [increase] in Neurontin or [change] to a different [medication] ‘since weather is getting more hot, symptoms are worsening.’ ” (Keane Decl.: Dockery, Ex. I [23-CV-5658, dkt. no. 29-9].) Thus, the entry does not indicate that Neurontin was not effective, as it had been shown to be throughout Plaintiff Dockery's medical records, but rather that with the hot weather that Plaintiff's symptoms were worsening. Similarly, had Dr. Dinello actually reviewed Plaintiff Dockery's medical records, he would have seen the same items noted above for Dr. Mueller. Thus, the same result obtains as in Ippolito: a jury could find that Dr. Dinello acted with deliberate indifference by “reflexively rely[ing] on the purported [medical] soundness of the [MWAP policy] itself, even where [Defendant was] on notice” by Plaintiff's past successful treatment with MWAP medications and the recommendation of outside experts and prison doctors “that a departure [from the MWAP policy] might be medically appropriate.” 2012 WL 4210125, at *13 (internal quotations omitted); see also Johnson, 412 F.3d at 406. Accordingly, Dr. Dinello's motion for summary judgment as to Plaintiff Dockery's claim for deliberate indifference (23-CV-5658, dkt. no. 22) is denied. D. Plaintiff Gradia's Claim for Deliberate Indifference State Represented Defendants Drs. Hammer, Dinello, and Mueller move for summary judgment to dismiss the claims against them by Plaintiff Gradia. (23-CV-5660, dkt. no. 18.) At the relevant times, Dr. Mueller was the RMD assigned to the hub that included Eastern Correctional Facility, where Plaintiff Gradia was housed, and Drs. Hammer and Dinello were RMDs assigned to other hubs. (See SRD 56.1 Stmt.: Gradia ¶ 1; Memorandum of Law in Support of State Represented Defendants’ Motion for Summary Judgment, dated November 16, 2023 (“SRD MSJ Br.: Gradia”) [23- CV-5660, dkt. no. 25] at 12; Declaration of Dr. John Hammer (“Hammer Decl.: Gradia”), dated May 20, 2021 [23- CV-5660, dkt. no. 19] ¶¶ 17-19; Declaration of Dr. David S. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 31 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 Dinello, dated May 20, 2021 (“Dinello Decl.: Gradia”) [23- CV-5660, dkt. no. 20] ¶ 28.) *13 Although the Amended Complaint complains of the denial of pain medications on a variety of dates (see, e.g., Amended Complaint as Severed from Allen I, filed June 30, 2023 (“AC: Gradia”) [23-CV-5660, dkt. no. 1] ¶¶ 272-367), Plaintiff's Amended Memorandum of Law in Opposition to the motion for summary judgment only discusses two denials (see Pl. Opp'n at 32-33). Accordingly, the Court will limit its discussion to those. As set out by Dr. Carinci, “John Gradia is 51 years old and ... has a long history of physical ailments ranging from recurrent prostatitis to serious degenerative lumbar disc disease, degenerative joint disease in the right knee.” (Carinci Rpt., dkt. no. 352-7 at 3.) Beginning in April of 2013, Plaintiff complained of “severe lower back, groin, rectum, and testicular pain” that prevented him from sleeping. (Id.) In the April to June time period, he was treated with, inter alia, Percocet and Ultram, the latter on the recommendation of Dr. Thomas Stellato, a urology specialist. (Id.) Plaintiff Gradia continued to complain of severe pain, including in an October 21, 2013, formal grievance asking that he be afforded “appropriate pain medication whereas I do not have to suffer in pain every day.” (Id. at 3-4 (citing id. at J. Gradia 37).) A January 22, 2014 lumbar spine X-ray was performed which, when compared to Plaintiff's 2007 X-ray, confirmed that “considerable disease in Mr. Gradia's spine had progressed.” (Id. at 4 (citing id. at J. Gradia 50-51).) A March 4 MRI also reflected “significant findings,” and a neurologist recommended that Plaintiff Gradia be prescribed Neurontin, which he took with occasional varying effects. (Id.) X-rays and MRIs in June and July of 2015 again “confirmed significant disease in [Plaintiff's] spine,” and he received three expert opinions on a surgical option. (Id. at 5.) On February 26, 2016, Plaintiff Gradia underwent anterior lumbar interbody fusion surgery and was given Ultram, Neurontin, and Motrin for pain management. (Id.) In March of 2016, Provider Dr. Andola's request for a twelve-month prescription for Neurontin was approved. (Id. (citing Carinci Rpt., dkt. no. 352-9 at J. Gradia 114-115).) An April 25, 2016 MRI found a “new left lateral disc herniation at L4-5 ....” (Id. at 6 (citing Carinci Rpt., dkt. no. 352-9 at J. Gradia 132-33).) On May 6, 2016, Plaintiff noted that his medication was not working and asked for an increase of his Neurontin. (Id. (citing Carinci Rpt., dkt. no. 352-9 at J. Gradia 134).) An EMG conducted by Dr. George Forrest on May 13, 2016, “suggest[ed] chronic multi-level root irritation.” (Id. (citing Carinci Rpt., dkt. no. 352-9 at J. Gradia 135-36).) Plaintiff was treated with Neurontin and Percocet in June and July 2016; the Percocet was decreased in August, and Plaintiff Gradia filed a grievance relating to his pain in September of 2016 where he requested “[t]o be administered the appropriate amount of pain medication that I was on to alleviate the constant pain I have to suffer ....” (Id.; Carinci Rpt., dkt. no. 352-10 at J. Gradia 165.) The September 2016 pain therapy consultant recommended continuing Neurontin but increasing Percocet; the latter recommendation was not approved. (Carinci Rpt., dkt. no. 352-7 at 6.) As Dr. Carinci relates: On March 1, 2017, Mr. Gradia received a nerve block and epidural block injection under fluoroscopy at Harris Anesthesia. [ ] Harris Anesthesia requested he be given post-operative medication for two weeks until the block takes full effect. [ ] A day later, he reported sharp pain like “someone sticking a knife in my rectum and twisting it.” [ ] Mr. Gradia's Treatment and Medication Chart indicates that his pain medication was not adjusted as recommended by the specialist and he continued to receive the same dosage of Neurontin (TID) and single dose of Percocet a day. [ ] As Mr. Gradia's pain continued to persist, on April 13, 2017 he met with Dr. DiRisio again who recommended an injection at L5-S1 to see if his problem is higher up his spine. [ ] On April 28, 2017 he was back at Harris Anesthesia for a pain management consultation where it was suggested his Neurontin be increased from 900mg to 1200mg and that he be scheduled for nerve root injections to L3-4 and L4-5. [ ] On May 19, 2017 Dr. Andola examined Mr. Gradia and noted worsening symptoms in his back, anus, scrotum, inner thigh, with chronic burning numbness. [ ] She noted that he had to stand for three hours during the night because the pain was worse when he laid down. [ ] Dr. Andola prescribed the maximum dose of Neurontin (1200mg) and increased his Percocet dosage to BID for two weeks. *14 (Id. at 6-7.) On June 1, 2017, the MWAP Policy was promulgated, at which time Plaintiff Gradia was treated with Neurontin and Percocet. (Id. at 7.) On June 7, 2017, Dr. Andola submitted an MWAP request to renew Plaintiff's Percocet prescription for five days which, after some back and forth, was denied by Dr. Mueller. (Id. (citing Carinci Rpt., dkt. no. 352-11 at J. Gradia at 213-14, 217, 220).) Dr. Hammer responded noting Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 32 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 that “Dr. Mueller [the assigned RMD] is out today. Was this an informational email or do you require some assistance with this case?” (Carinci Rpt., dkt. no. 352-11 at J. Gradia 219.) Dr. Hammer states, without contradiction, that he had no involvement with the June 2017 Percocet MWAP request other than that response. (Hammer Decl.: Gradia ¶¶ 16-21.) On June 16, 2017, Plaintiff Gradia is recorded as telling a nurse “I don't know why I'm suffering with all this pain when it was recommended by ‘pain management’ that I receive my pain medications for two weeks [after] this injection.” (Carinci Rpt., dkt. no. 352-7 at 7; Carinci Rpt., dkt. no. 352-11 at J. Gradia 230.) The first denial at issue in Plaintiff's Opposition is the June 23, 2017 MWAP request submitted by Dr. Andola to renew Plaintiff's Neurontin prescription for a year, noting his surgery and that he was currently on Neurontin (Gabapentin). (Pl. Opp'n at 32; Carinci Rpt., dkt. no. 352-11 at J. Gradia 241-244.) Dr. Mueller denied the twelve-month request and only approved thirty days with two refills. (Carinci Rpt., dkt. no. 352-11 at J. Gradia 244.) In her Declaration, Dr. Mueller cites no patient-specific reason for this denial (Declaration of Dr. Susan C. Mueller, dated November 13, 2023 (“Mueller Decl.: Gradia”) [23-CV-5660, dkt. no. 21] ¶¶ 37-41), and indeed cited no reason for the denial on the MWAP (see Carinci Rpt., dkt. no. 352-11 at J. Gradia 244). As Dr. Carinci reports: On July 21, 2017 Mr. Gradia returned to Harris Anesthesia for pain therapy consultation and was recommended for injection treatment every 14 days, Ultram 100mg TID, and follow-up appointment with neurosurgery. [ ] These recommendations were entered into his AHR on the same day and noted “agree ... on injection every 14 days.” [ ] On or around August 25, 2017 Dr. Andola submitted a MWAP request for a one-month duration of Ultram. [ ] Dr. Andola specified that the request followed the 7/21/17 pain management consultation recommendation to treat Mr. Gradia's pain. [ ] Dr. Andola further documented in the MWAP request form the specialist recommendation of Neurontin and Percocet (which was previously denied) be prescribed for his pain management and identified past treatments attempted of Ibuprofen and Tylenol #3. [ ] RMD Mueller did not approve the request stating an MRI finding was not clinically significant, that he never had PT for his lower back pain and recommended to “explore safer alternatives as well as continue Pain Management.” (Carinci Rpt., dkt. no. 352-7 at 7; see also Carinci Rpt., dkt. no. 352-11 at J. Gradia 250; Carinci Rpt., dkt. no. 352-12 at J. Gradia 252-54 (MWAP request forms).) *15 Dr. Dinello also emailed his denial of the MWAP request stating that there was insufficient medical justification for the medication. (Carinci Rpt., dkt. no. 352-12 at J. Gradia 256.) As in Ippolito, a jury could find that Dr. Mueller and Dr. Dinello acted with deliberate indifference by “reflexively rely[ing] on the purported [medical] soundness of the [MWAP policy] itself, even where they [were] on notice” by Plaintiff's past successful treatment with MWAP medications and the recommendation of outside experts and prison doctors “that a departure [from the MWAP policy] might be medically appropriate.” 2012 WL 4210125, at *13 (internal quotations omitted); see also Johnson, 412 F.3d at 406. Accordingly, Dr. Mueller and Dr. Dinello's motion for summary judgment as to Plaintiff Gradia's claim of deliberate indifference (23- CV-5660, dkt. no. 18) is denied. As noted above, Dr. Hammer had no involvement with either of the complained of MWAP denials (see Hammer Decl.: Gradia ¶¶ 16-21), and thus is entitled to summary judgment. E. Plaintiff Hernandez's Claim for Deliberate Indifference Dr. Kathleen Mantaro (23-CV-5661, dkt. no. 24) and State Represented Defendant Dr. Susan Mueller (23-CV-5661, dkt. no. 29) move for summary judgment to dismiss the claims against them by Plaintiff Hernandez. As reported by Dr. Carinci: Angel Hernandez is a 58-year-old patient who suffers from various physical maladies including back pain with radiating symptoms to the left side of his body. He is currently in the custody of DOCCS and residing in Wallkill Correctional Facility. He is documented to be suffering from degenerative disc disease at his L5- S1, osteoarthritis, and left carpal tunnel syndrome with numbness and neuropathy. His medical problem list Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 33 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 includes pain management, cervical spine syndromes, back pain with radiating symptoms. [ ] Mr. Hernandez has a history of gunshot wounds and related surgeries to his left arm, as well as a remote history of opioid abuse before his incarceration in 2000. [ ] His medical records show well documented and longstanding chronic pain ailments that require consistent pain management intervention to control. (Carinci Rpt., dkt. no. 352-30 at 3.) Dr. Kathleen Mantaro, Plaintiff Hernandez's provider at Coxsackie, reports that when she began treatment, Plaintiff had prescriptions for Ultram and Neurontin, prescribed by Dr. Miller. (Declaration of Kathleen Mantaro (“Mantaro Decl: Hernandez”) [23-CV-5661, dkt. no. 27] ¶ 9.) As she reports, on January 24, 2017, Plaintiff Hernandez reported left arm numbness, that he had previously had an MRI on the lower spine, and needed an EMG. Dr. Mantaro ordered an EMG and renewed his Ultram prescription. (Id. ¶ 10 (citing Ex. A [23-CV-5661, dkt. no. 27-1] at Mantaro-001).) She noted that the December 12, 2016 MRI of Plaintiff Hernandez's lower spine showed “diffuse degenerative changes without focal abnormality.” (Id. ¶ 11 (citing Ex. A at Mantaro-002).) Plaintiff's EMG on March 3, 2017, reported normal. (Id. ¶ 12 (citing Ex. A at Mantaro-004-05).) On March 13, 2017, Plaintiff Hernandez complained of back pain, and Dr. Mantaro ordered several referrals and prescribed Flexeril. (Id. ¶ 13 (citing Ex. A at Mantaro-003).) Dr. Mantaro referred Plaintiff for a surgery consultation, and Dr. Chismark, the surgeon, recommended Celebrex and consideration of Neurontin, which Dr. Mantaro ordered. (Id. ¶ 14 (citing Ex. A at Mantaro-006-07).) *16 On May 1, 2017, Plaintiff Hernandez complained of shoulder pain, and Dr. Mantaro referred him for an MRI and an orthopedic consultation; those requests were denied by Dr. Mueller. (Id. ¶ 15 (citing Ex. A at Mantaro-008-11).) Following a pain therapy consultation on March 15, 2017, Dr. Azam, the pain expert, recommended an increase in Neurontin, among other things. (Id. ¶ 16 (citing Ex. A at Mantaro-012).) Because she agreed with Dr. Azam's recommendation, Dr. Mantaro ordered an increase in Plaintiff Hernandez's Neurontin and further increased his Ultram and Neurontin on May 24, 2017 in response to continued complaints of shoulder and lower back pain. (Id. ¶¶ 16-17 (citing Ex. A at Mantaro-012-15).) She also ordered an MRI and physical therapy referral. (Id. ¶ 18 (citing Ex. A at Mantaro-013, 015-16).) The MWAP policy was promulgated on June 1, 2017. (Id. ¶ 19.) At a follow-up appointment on June 15, 2017, Dr. Azam recommended continuing Neurontin, among other things. (Id. ¶ 20 (citing Ex. A at Mantaro-017).) Dr. Mantaro agreed with Dr. Azam's recommendations and, on June 27, 2017, ordered increases in his Ultram and Neurontin prescriptions. (Id. ¶ 21 (citing Ex. A at Mantaro-027, 018).) On June 26, 2017, Dr. Miller, another provider, submitted an MWAP request for renewal of Plaintiff Hernandez's Neurontin prescription. (Id. ¶ 22 (citing Mantaro-019, 021).) Dr. Mueller denied the request, noting “no EMG or mention of 5 pt. sensory exam diagnostic of peripheral neuropathy” and suggesting utilizing “safer agents.” (Id.; Ex. A at Mantaro-019-21.) Dr. Miller also submitted an MWAP request to renew Plaintiff Hernandez's Ultram prescription. That request was similarly denied by Dr. Mueller. (Id. ¶ 23 (citing Ex. A at Mantaro-022-24).) In denying the request, Dr. Mueller stated: “Has not had PT for LBP since 2014. Past success with steroid injections. Recommend PT for back, counseling to accept recommended interventional pain procedures.” (Ex. A at Mantaro-024.) Very shortly after that, Dr. Dinello agreed with the denial and ordered that Plaintiff be weaned off of Ultram. (Declaration of Kathleeen Mantaro, dated November 11, 2023 (“Mantaro Decl.: Hernandez”) [23-CV-5661, dkt. no. 27] ¶ 23 (citing Ex. A [23-CV-5661, dkt. no. 27-1] at Mantaro-025).) On June 27, 2017, Dr. Mantaro adjusted Plaintiff's Ultram and Neurontin prescriptions, and on June 29 noted that Ultram was not approved and needed to be tapered. (Id. ¶ 25 (citing Ex. A at Mantaro-027); Ex. A at Mantaro-029.) On July 18, 2017, Dr. Mantaro ordered Plaintiff a Transcutaneous Electrical Nerve Stimulation (“TENS”) unit to assist with his back pain and referred him to a follow up with Dr. Mueller. (Mantaro Decl.: Hernandez ¶ 26 (citing Ex. A at Mantaro-030).) Finally, on August 2, 2017, at the instruction of Drs. Mueller and Dinello, Dr. Mantaro ordered taper schedules of Plaintiff Hernandez's Ultram and Neurontin. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 34 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 (Id. ¶ 27 (citing Ex. A at Mantaro-031-032).) Dr. Mantaro departed DOCCS on or about August 4, 2017. (Id. ¶ 28.) Plaintiff faults Dr. Mantaro for not appealing the denials to the CMO or RMD with additional information and for not prescribing alternative medications. (Pl. Opp'n at 34.) However, Dr. Mantaro explained: I had no ability to fill these prescriptions without approval. The MWAP policy did not have an appeal mechanism and my understanding was there were no other options after a non-approval but to follow the recommendations made by my clinical supervisor Dr. Susan Mueller and Dr. Dinello. (Mantaro Decl.: Hernandez ¶ 24.) There is no evidence to the contrary in the record. Because Dr. Mantaro was entirely responsive to Plaintiff Hernandez's pain complaints, including prescribing medications recommended by surgery and pain management experts and prescribing a TENS unit after noting that Plaintiff's MWAP medications had not been approved, she cannot be found to have been deliberately indifferent on this record. With respect to the tapering of Plaintiff's medication, Dr. Mantaro explained, without contradiction, that there was no formal appeal process from the RMDs’ denial of the MWAP request. Accordingly, Dr. Mantaro is entitled to summary judgment, and her motion (23-CV-5661, dkt. no. 24) is granted as to Plaintiff Hernandez's claim of deliberate indifference. *17 With respect to Dr. Mueller, in rejecting the June 26, 2017 MWAP request for Neurontin she noted, “[n]o EMG or mention of 5 pt. sensory exam, diagnostic of peripheral neuropathy” and suggested using safer agents. (Ex. A at Mantaro-021.) Similarly in denying Dr. Miller's June 26 MWAP request to renew Plaintiff Hernandez's Ultram prescriptions, Dr. Mueller recommended “PT for back” and “counseling to accept recommended interventional pain procedures.” (Id. at Mantaro-022-24.) However, Dr. Carinci states that Plaintiff's “medical records show well documented and longstanding chronic pain ailments that require consistent pain management intervention to control.” (Carinci Rpt., dkt. no. 352-30 at 3 (emphasis added).) Dr. Carinci noted numerous imagings performed on Plaintiff Hernandez in 2002, 2003, 2004, 2010, 2016, and 2017, documented his “chronic pain ailments.” (Id. at 3-4.) In addition to ignoring these imagings, Dr. Mueller also rejected the recommendations of two experts (one surgeon and one pain management expert on two occasions) and of DOCCS providers Drs. Miller and Mantaro, as well as Plaintiff Hernandez's lengthy history of effective pain management on his MWAP medications. Based on the record before the Court, there is a question of fact as to whether Dr. Mueller exercised her medical judgment in denying the MWAP requests or whether she relied reflexively on the MWAP policies. As in Ippolito, a jury could find that Dr. Mueller acted with deliberate indifference by “reflexively rely[ing] on the purported [medical] soundness of the [MWAP policy] itself, even where [she was] on notice” by Plaintiff's past successful treatment with MWAP medications and the recommendation of outside experts and prison doctors “that a departure [from the MWAP policy] might be medically appropriate.” 2012 WL 4210125, at *13 (internal quotations omitted); see also Johnson, 412 F.3d at 406. Accordingly, Dr. Mueller's motion for summary judgment (23-CV-5661, dkt. no. 29) as to Plaintiff Hernandez's claim of deliberate indifference is denied. F. Plaintiff Knight's Claim for Deliberate Indifference Dr. Chung Lee seeks summary judgment dismissing the claim against him by Plaintiff Knight. (23-CV-5662, dkt. no. 12.) As related by Dr. Carinci: Hugh Knight is currently in the custody of Shawangunk Correctional Facility. Mr. Knight is a partial paraplegic caused by multiple gunshot wounds from 1990. [ ] In 1991, he had spinal cord surgery. Mr. Knight's serious and traumatic injuries cause him severe and chronic pain that requires effective pain management. Mr. Knight has well documented neuropathy, bilateral leg pain, radiating shoulder pain, hip pain, degenerative lower back and cervical spine disease. [ ] Mr. Knight has Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 35 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 ambulation issues that require him to use a wheelchair. (Carinci Rpt., dkt. no. 355-1 at 3.) As noted by Dr. Lee, the gunshot wounds initially left Plaintiff Knight paralyzed. (Declaration of Chung Lee, dated October 18, 2023 (“Lee Decl.: Knight”) [23-CV-5662, dkt. no. 15] ¶ 13.) He later gained partial functionality and was able to walk with a cane. (Id.) When he transferred to Shawangunk in 2014, Plaintiff Knight was taking Neurontin which he continued to May 30, 2015, when he refused it. (Id. ¶ 14 (citing Ex. A [23-CV-5662, dkt. no. 15-1] at Lee001-02, 004).) In October of 2015, Dr. Lee re-prescribed Neurontin and added Flexeril in response to Plaintiff's complaints of pain. (Id. ¶ 15 (citing Ex. A at Lee007).) In November of 2015, because Plaintiff Knight refused to take his Neurontin, it was discontinued. (Id. ¶ 16 (citing Ex. A at Lee008).) Following an evaluation at Albany Medical Center for “progressive peripheral neuropathy,” the attending physician noted that Plaintiff stated that he had tried different medications to address his pain (Neurontin, Lyrica, Tramadol, Toradol, Gabapentin), in different combinations but nothing had been effective. (Id. ¶ 18.) The specialist prescribed Elavil, aspirin, and Flexeril. (Id.) Following a neurology consultation in March of 2016, the neurologist recommended an increase in Plaintiff Knight's Elavil prescription, which Dr. Lee ordered. (Id. ¶ 19 (citing Ex. A at Lee028, 029).) Dr. Lee increased Plaintiff's Elavil on March 14 and 31 of 2016 in an effort to address Plaintiff's complaints of pain. (Id. ¶ 20 (citing Ex. A at Lee030, 31).) Even with the adjustments in his medications, however, Plaintiff Knight's pain increased in the spring of 2016. For example, on April 26, 2016, Plaintiff reported “[increased] pain due to recent need for [greater] ambulation when moved to C block[;] requesting closer cell to medical so he can walk to medication call out.” (Carinci Rpt., dkt. no. 355-5 at H Knight 267.) These complaints of pain continued without any change in medication. For example, on May 8, 2016, Plaintiff Knight failed to appear for a blood pressure check, reporting “too much pain in leg to move this far.” (Carinci Rpt., dkt. no. 355-6 at H Knight 268.) On May 16, he reported “footpain,” and the provider noted “may change his cell” closer to the medical station. (Id. at H Knight 269.) For months, Plaintiff Knight refused blood pressure checks because pain prevented him from walking so far. (Id. at H Knight 271 (5/21/16); H Knight 275 (6/12/16); H Knight 277 (6/26/16); H Knight 282 (10/21/16); H Knight 282 (11/22/16).) Although Dr. Lee referred Plaintiff to physical therapy for an appointment on May 6, 2016 (id. at H Knight 274), he failed to adjust Plaintiff's medication to reduce his pain. *18 A specialist recommendation dated August 31, 2016, suggested “consider adding Gabapentin [?] for pain control.” (Id. at H Knight 280.) On September 30, 2016, the provider noted “severe neuropathy” and re-prescribed Elavil. (Id. at H Knight 281.) As set out in Dr. Lee's Declaration, from mid-February of 2017 through October of 2018, Plaintiff Knight presented no complaints of pain. (Lee Decl.: Knight ¶¶ 21-34; see also Carinci Rpt., dkt. no. 355-6 at H Knight 295.) On October 11, 2018, Plaintiff Knight complained of “excessive, neurotic pain” in his foot and requested “Lyrica or something like it.” (Lee Decl.: Knight ¶ 35 (citing Ex. A at Lee099).) On October 30, Dr. Lee prescribed Cymbalta “which [in his] medical judgment was an appropriate medication to treat [Plaintiff's] complaints of pain.” (Id. ¶ 36 (citing Ex. A at Lee100).) Plaintiff Knight continued on Cymbalta through the end of 2018, and Dr. Lee renewed his prescription on January 15, 2019. (Id. ¶¶ 37-38.) Plaintiff continued on Cymbalta with some changes in timing and dosage with no complaints of pain through November of 2019, when Dr. Lee retired. (Id. ¶¶ 39-44.) Plaintiff Knight argues that he had been prescribed Lyrica in October of 2006 and that prescription was continually approved until it was discontinued on June 8, 2011. (See Pl. Opp'n at 35.) He argues that, after his transfer to Shawangunk in 2014, Dr. Lee was deliberately indifferent to Plaintiff Knight's pain because Lyrica had been shown to be effective for Plaintiff, but Dr. Lee failed to prescribe it. (See id. at 35-36.) Although, as noted above, Dr. Lee sent Plaintiff Knight for various expert consultations and followed the pain medication recommendations made by the experts, the record reflects a multi-month period mid-2016 when Plaintiff continually complained of pain so severe that he could not walk to have his blood pressure checked, during which time Dr. Lee failed to prescribe Lyrica or otherwise adjust Plaintiff's medications to alleviate or decrease his pain. In light of Dr. Lee's intimate knowledge of Plaintiff Knight's medical history and Plaintiff Knight's continuing Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 36 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 16 complaints, a jury could find that Dr. Lee was deliberately indifferent to Plaintiff's pain by failing to prescribe effective pain medication. Accordingly, Dr. Lee's motion for summary judgment (23-CV-5662, dkt. no. 12) as to Plaintiff Knight's claim of deliberate indifference is denied. G. Plaintiff Mathis's Claim for Deliberate Indifference State Represented Defendant Dr. Mueller moves for summary judgment to dismiss the claim against her by Plaintiff Mathis. (23-CV-5663, dkt. no. 14.) As related by Dr. Carinci: “Mr. Mathis has documented chronic pain ailments that require pain management, including extensive disc degermation disease at L1-S1, and segmental spinal stenosis at L4-S1 with facet arthropathy, carpel tunnel syndrome in left wrist, and chronic rotator cuff tendinopathy.” (Carinci Rpt., dkt. no. 356-26 at 3.) Dr. Carinci also reports that Plaintiff Mathis had been on Neurontin or Ultram from as early as April 2013 (id.), and had suffered two laminectomies on his lumbar spine, one in July of 2014, and one in November of 2016 (id. at 3, 4). After each one, the surgeons prescribed Neurontin. (Id.) Following an April 29, 2016 spinal X-ray showing extensive disc degeneration and segmental spinal stenosis with facet arthropathy, Plaintiff Mathis was on Ultram, which he refused at least once due to vomiting. (Id. at 4.) *19 Plaintiff Mathis complains of Dr. Mueller's denial of Dr. Lee's MWAP requests of June 26, 2017, July 27, 2017, and September 27, 2017. (See Pl. Opp'n at 37-39.) On June 26, 2017, following X-rays and an EMG study on Plaintiff's left wrist, Dr. Lee submitted an MWAP request for Neurontin with eleven refills, which, as noted above, had been effective in relieving Plaintiff Mathis's pain. (Carinci Rpt., dkt. no. 356-26 at 4; Carinci Rpt., dkt. no. 356-27 at T Mathis 086-089.) In the request, Dr. Lee noted under “Diagnosis,” “s/p laminectomy x2, radiculopathy 14/5/s1.” (Carinci Rpt., dkt. no. 356-27 at T Mathis 087.) He noted specialty consultations, “ort; laminectomy x2, pai[n]; facet injection 12-9-15,” and “Treatment options attempted/step therapy:” “surgery, back brace, facet injection, pth & [non-steroidal anti-inflammatory drugs].” (Id.) Dr. Mueller approved only a one-month supply, commenting: “Recommend [follow- up] w/ Pain Management, PT, Neurosurg/Ortho as indicated. Safer agents indicated such as Lamictal >>>Cymbalta, Lidoderm patches, Voltaren gel, etc. Please contact me for Lamictal titrating dosage schedule.” (Carinci Rpt., dkt. no. 356-27 at T Mathis 089-90.) While Plaintiff Mathis was in the Shawangunk infirmary for lower back pain, on July 31, 2017, Dr. Lee submitted to Dr. Mueller an MWAP request for a two-week supply of Ultram with no refills. (Carinci Rpt., dkt. no. 356-28 at T Mathis 106-07.) Dr. Mueller denied the request, commenting: “You failed to mention that pt is also on Neurontin 2400 mg. In that approval, recommended referral to PT, Pain Management, Neurosurg, etc. None on of these recommendations have been followed. Will approve 5 day supply only. Please submit new request accordingly. Also, please updated [sic] form when you do so, as requested several times in the past.” (Id. at T Mathis 108-109.) Plaintiff Mathis's pain did not abate. (See, e.g., id. at T Mathis 101 (July 14, 2017 notes of “burning in lower back and legs going numb severe pain [right] side lower back”); id. at T Mathis 101 (July 25, 2017 notes of “[complaint of] numbness, tingling [down] both legs, [and] burning sensation”).) On September 27, 2017, Dr. Lee submitted an MWAP request to Dr. Mueller for Neurontin with eleven refills. (Id. at T Mathis 122-24.) He noted under radiologic testing an August 23, 2017 film showing “ctb; recurrent spinal stenonis.” (Id.) Again, Dr. Mueller denied the request, commenting: “No EMG, PE noted. MWAP of 6/27 recommended use of safer agents with many alternatives listed. Obviously no changes made in 3 month interim. Please taper to d/c. Please refer to earlier MWAP and lecture and handouts of 8/17 for further assistance with management options. Also, once again you are using incorrect form.” (Id. at T Mathis 125-126.) In November of 2017, Plaintiff was again admitted to the infirmary for uncontrolled lower back pain and chest pain. (Id. at T Mathis 129.) In denying Dr. Lee's June 26, 2017, July 27, 2017, and September 27, 2017 MWAP requests, asking for more tests and advocating “safer alternatives”, Dr. Mueller disregarded the: 1. Voluminous testing Plaintiff Mathis had undergone which confirmed his pain; *20 2. The recommendations of outside experts to treat Plaintiff's pain with Neurontin and Ultram; 3. Plaintiff's prior effective treatment with Neurontin and Ultram; and Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 37 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 17 4. The recommendation of Plaintiff's treating prison physician for Neurontin and Ultram. Accordingly, a question of fact exists as to whether Dr. Mueller exercised her medical judgment in denying the MWAP requests—as she stated in her post-litigation declaration—or whether she relied reflexively on the MWAP policies—as stated in her denials of the MWAP requests. As in Ippolito, a jury could find that Dr. Mueller acted with deliberate indifference by “reflexively rely[ing] on the purported [medical] soundness of the [MWAP policy] itself, even where [she was] on notice” by Plaintiff's past successful treatment with MWAP medications and the recommendation of outside experts and prison doctors “that a departure [from the MWAP policy] might be medically appropriate.” 2012 WL 4210125, at *13 (internal quotations omitted); see also Johnson, 412 F.3d at 406. Accordingly, Dr. Mueller's motion for summary judgment (23-CV-5663, dkt. no. 14) as to Plaintiff Mathis's claim for deliberate indifference is denied. H. Plaintiff Pritchett's Claim for Deliberate Indifference State Represented Defendants Dr. David Dinello and Dr. Susan Mueller move for summary judgment to dismiss the claims against them by Plaintiff Pritchett. (23-CV-5664, dkt. no. 16.) As reported by Dr. Carinci: Mr. Sean Pritchett is a wheelchair bound amputee that is currently residing in Shawangunk Correctional Facility. He has an above the right knee amputation that has resulted in severe nerve pain in his stump and significant phantom pain. [ ] Mr. Pritchett's nerve and phantom pain is a chronic condition that requires effective pain management control. In addition, he also suffers from back pain, degenerative discogenic changes in his lower back, degenerative joint disease in his elbow, and severe degenerative disease in his hip, along with muscle spasms. [ ] For years, Mr. Pritchett was treated effectively with Lyrica to manage his severe nerve and phantom pain. (Carinci Rpt., dkt. no. 358-6 at 3.) Dr. Carinci reported that as early as October of 2007, Plaintiff was seen by a neurology specialist and reported that his Neurontin was not helping. (Id.) The specialist recommended Lyrica, and Plaintiff Pritchett's dosage was increased. (Id.) After a December 2007 consultation with a pain therapist, the therapist recommended increasing his Lyrica dosage. (Id. at 3-4; id. at S Pritchett 024.) In 2014, a pain specialist again recommended Lyrica, and Plaintiff Pritchett's dosage was increased in August of 2014. (Id. at 4.) With respect to the MWAPs at issue, Dr. Carinci reports: In January of 2017, Dr. Lee requested the renewal of Mr. Pritchett's effective Lyrica medication. The non-formulary request went to RMD David Dinello who denied the renewal reasoning that he “will not approve a controlled/ scheduled substance for a chronic pain issue that is not life or limb threat[en]ing. The risk/benefit ratio is too high.” [ ] RMD Dinello made this decision without ever treating Mr. Pritchett or discussing Mr. Pritchett's history with Dr. Lee. Based on RMD Dinello's denial, on January 30, 2017, Mr. Pritchett was placed back on Neurontin 1200mg TID and Cymbalta 30mg PO and was never provided Lyrica again. [ ] On February 1, 2017 Mr. Pritchett reported to emergency sick call with nausea, vomiting, headaches due to the withdrawal of Lyrica. [ ] Two weeks later, Mr. Pritchett reported to sick call continual diarrhea since being taken off Lyrica and the pain in his stump had increased. [ ] On February 21, 2017 Mr. Pritchett again complained to sick call that he was in severe pain and that he could not deal with the pain and wanted to see pain management and a neurosurgeon. [ ] On February 27, 2017 Dr. Lee noted his increased pain since change from Lyrica to Neurontin in his medical records, yet nothing was done. *21 (Id. at 6.) Dr. Dinello confirmed this reasoning (or lack thereof) in his declaration: In response to the request for Lyrica, and after considering the medical and Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 38 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 18 social information, I did not approve a controlled/scheduled substance for chronic pain issue such as Plaintiff's because it was not life or limb threatening. [ ] It was my medical judgment that the risks of prescribing a controlled/scheduled substance with abuse potential far outweighed the benefits in a case like Plaintiff's. Instead, I suggested that Plaintiff could again be prescribed Gabapentin, if necessary, because for this patient at this time, it was a safer drug than the requested Lyrica. (Declaration of Dr. David S. Dinello, dated November 15, 2023 (“Dinello Decl.: Pritchett”) [23-CV-5664, dkt. no. 17] ¶¶ 37-38.) That Dr. Dinello refused an effective medication that Plaintiff had been taking for many years because the chronic pain “was not life or limb threatening” might well be the definition of deliberate indifference to a patient's pain. Accordingly, Dr. Dinello's motion for summary judgment (23-CV-5664, dkt. no. 16) as to Plaintiff Pritchett's claim for deliberate indifference is denied. Plaintiff Pritchett also complains of Dr. Mueller's September 28, 2017 denial of an MWAP request. 6 As set out in Dr. Carinci's Report, on June 16, 2017, Dr. Lee submitted an MWAP request to RMD Mueller for a year's supply of Neurontin which RMD Mueller approved, but only for three months. (Carinci Rpt., dkt. no. 358-6 at 5; Carinci Rpt., dkt. no. at 358-11 at S Pritchett 177-80.) When Dr. Lee submitted the follow up request on September 27, 2017, RMD Mueller did not approve it, stating “Unclear when and why changed from Lyrica to Neurontin. Recommend change to safer agent until surgica[l] relief obtained.” (Carinci Rpt., dkt. no. at 358-11 at S Pritchett 185-87.) Aside from the fact that RMD Mueller's reason for denying the MWAP request is not a medical reason, had she merely reviewed Plaintiff Pritchett's medication history, she would have seen that it was Dr. Dinello who ordered Dr. Lee to change from Lyrica, which had effectively treated Plaintiff's pain for years, to Neurontin, which was less effective. (See Carinci Rpt., dkt. no. 358-10 at S Pritchett 169-169A.) Dr. Mueller repeated that reason in her declaration. (Declaration of Dr. Susan C. Mueller, dated November 13, 2023 (“Mueller Decl.: Pritchett”) [23- CV-5664, dkt. no. 18] ¶ 27.) Based on the record before the Court, there is a question of fact as to whether Dr. Mueller exercised her medical judgment in denying the MWAP request (for a non-medical reason)—as she stated in her post-litigation declaration—or whether she relied reflexively on the MWAP policies then in effect. As in Ippolito, a jury could find that Dr. Mueller acted with deliberate indifference by “reflexively rely[ing] on the purported [medical] soundness of the [MWAP policy] itself, even where [she was] on notice” by Plaintiff's past successful treatment with MWAP medications and the recommendation of outside experts and prison doctors “that a departure [from the MWAP policy] might be medically appropriate.” 2012 WL 4210125, at *13 (internal quotations omitted); see also Johnson, 412 F.3d at 406. Accordingly, Dr. Mueller's motion for summary judgment (23-CV-5664, dkt. no. 16) as to Plaintiff Pritchett's claim for deliberate indifference is denied. I. Plaintiff Rivera-Cruz's Claim for Deliberate Indifference *22 State Represented Defendant Dr. Susan Mueller moves for summary judgment to dismiss the claim against her by Plaintiff Rivera-Cruz. (23-CV-5667, dkt. no. 15.) As related by Dr. Carinci, “Felipe Rivera-Cruz suffers from peripheral neuropathy and paraplegia due to gunshot wounds suffered in 2003. (Carinci Rpt., dkt. no. 360-1 at 3 (citing id. at Rivera Cruz 025-26).) He is wheelchair bound and can ambulate about fifty feet with the use of a walker and knee ankle feet orthotics (“KAFOs”). (Id. (citing id. at Rivera Cruz 026).) He occasionally suffers from spasms in his lower extremities. (Id.) Plaintiff Rivera-Cruz entered the Riker's Island facility in 2011 and took, inter alia, Lyrica for, inter alia, peripheral neuropathy. (Id.) Upon transfer to Downstate Correctional Facility in February of 2013, his neuropathy was treated with, inter alia, Neurontin. (Id.) Later that month when he transferred to Five Points Correctional Facility, he was discontinued from Neurontin and placed back on Lyrica. (Id.) On March 15, Plaintiff Rivera-Cruz complained of spasms, was started on physical therapy, and on March 28, started to take Baclofen for muscle spasms. (Id.) In July, he began taking Elavil to treat his pain. (Id.) Providers at Five Points continued to treat Plaintiff's neuropathy and spasms with Lyrica, Elavil, and Baclofen until April 10 when they switched off Lyrica and back to Neurontin. (Id.) In Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 39 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 19 August of 2014, Plaintiff Rivera-Cruz's Neurontin dosage was increased, and on March 6, 2015, his Neurontin was increased again as well as Baclofen, and his Elavil was discontinued. (Id.) When transferred in July of 2015 to Shawangunk Correctional Facility, Plaintiff continued on Baclofen and Neurontin, then went off of Neurontin, and then went back on an increased dose of Neurontin on October 20, 2015. (Id.) On August 25, 2016, Plaintiff Rivera-Cruz saw Dr. George Forrest for an EMG. (Id. at 4.) Dr. Forrest confirmed neuropathy and wrote, “[t]he medications of choice are Lyrica, Neurontin, Cymbalta, Effexor, and tricyclic anti- depressants. Neurontin is associated with edema (swelling) [;] the anti-depressants do not have that side effect.” (Id.) Plaintiff's providers thereafter discontinued Neurontin and took him on and off of Elavil. (Carinci Rpt., dkt. no. 360-1 at 4.) Thus, Plaintiff Rivera-Cruz remained only on Baclofen to treat his ailments. (Id.) On June 15, 2017 Plaintiff Rivera-Cruz's provider, Dr. Chung Lee, requested approval for Plaintiff to remain on Baclofen. (Id. (citing Carinci Rpt., dkt. no. 360-3 at Rivera Cruz 116-17.) RMD Mueller denied the request stating only that “information provided does not meet criteria for approval.” (Carinci Rpt., dkt. no. 360-3 at Rivera Cruz 118.) Accordingly, Plaintiff Rivera-Cruz's Baclofen prescription was discontinued, and he lost his “effective pharmacological treatment for his neuropathy.” (Carinci Rpt., dkt. no. 360-1 at 4.) 7 *23 In her declaration, however, RMD Mueller states the following with respect to Dr. Lee's MWAP request to continue Baclofen: Per my standard practice, I reviewed the Plaintiff's medical records after receiving this request. I did not see an indication that he was suffering from spasticity. I also noted that Plaintiff did not appear to have recently complained of neuropathic pain, had stated that physical therapy previously relieved his pain. But, again, even if he had been making such complaints, treatment of neuropathic pain with Baclofen would have been medically inappropriate. I further noted that the physician who performed a recent EMG on Plaintiff to confirm the presence of neuropathy had recommended that Plaintiff's neuropathic pain be treated with tricyclic antidepressants instead. (Declaration of Dr. Susan C. Mueller, dated May 20, 2021 (“Mueller Decl.: Rivera-Cruz”) [23-CV-5667, dkt. no. 17] ¶ 27.) As Plaintiff Rivera-Cruz argues in opposition, however, he also suffers from well-documented muscle contractures. (Agnew Decl., Ex. 80 [23-CV-5667, dkt. no. 29-104] at RIVERA CRUZ FHS1 25-36, 49, 88, 91, 93, 97, 100-105 and 122.) Between 2016-2017, the FHS1 system documented at least twenty-one physical therapist notes that memorialize Plaintiff Rivera-Cruz's muscle contractures. (Ibid.) Muscle contractures occur when muscle spasticity is uncontrolled. (Pl. Opp'n at 41 (citing RMD Mueller's Local Civil Rule 56.1 Statement of Undisputed Facts, dated November 15, 2023 (“Mueller 56.1 Stmt.: Rivera-Cruz”) [23-CV-5667, dkt. no. 26] ¶ 14).) Based on the record before the Court, there is a question of fact as to whether Dr. Mueller exercised her medical judgment in denying the MWAP request—as she stated in her post- litigation declaration—or whether she denied it reflexively for the non-medical reason that the “[i]nformation provided [did] not meet criteria for approval”—as stated in her denial of the MWAP request. (Carinci Rpt., dkt. no. 360-3 at Rivera Cruz 118.) As in Ippolito, a jury could find that Dr. Mueller acted with deliberate indifference by “reflexively rely[ing] on the purported [medical] soundness of the [MWAP policy] itself, even where [she was] on notice” by Plaintiff's past successful treatment with MWAP medications and the recommendation of outside experts and prison doctors “that a departure [from the MWAP policy] might be medically appropriate.” 2012 WL 4210125, at *13 (internal quotations omitted); see also Johnson, 412 F.3d at 406. Accordingly, Dr. Mueller's motion for summary judgment (23-CV-5667, dkt. no. 15) as to Plaintiff Rivera Cruz's claim for deliberate indifference is denied. J. Plaintiff Stewart's Claim for Deliberate Indifference State Represented Defendant Dr. Susan Mueller moves for summary judgment to dismiss Plaintiff Stewart's claim against her. (23-CV-5668, dkt. no. 16.) Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 40 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 20 Plaintiff Wayne Stewart suffers from paraplegia as a result of a 2003 gunshot wound and the subsequent amputation of his right leg and is wheelchair bound. (Carinci Rpt., dkt. no. 361-18 at 3; Defendant Dr. Susan Mueller's Response to Plaintiff's Statement of Additional Material Facts Precluding Summary Judgment, dated March 12, 2024 (“Mueller PSUF Response: Stewart”) [23-CV-5668, dkt. no. 39] at 2.) As a result of his injuries, Plaintiff Stewart suffers from chronic pain. (Carinci Rpt., dkt. no. 361-20 at W Stewart 117.) At the time of his transfer to DOCCS custody in April 2017, Plaintiff Stewart's medication was listed as MS Contin. (Carinci Rpt., dkt. no. 361-18 at 1.) In June 2017, Plaintiff's MS Contin was changed to short-acting Percocet. (Plaintiff's Response to Defendant's Statements of Undisputed Facts and Plaintiff's Statement of Additional Material Facts Precluding Summary Judgment, dated January 1, 2023 (“PSUF: Stewart”) [23- CV-5668, dkt. no. 25] ¶ 157.) *24 On June 26, 2017, Dr. Chung Lee submitted an MWAP Request to Dr. Mueller for renewal of Plaintiff Stewart's Percocet prescription at 5 mg for 30 days to treat his pain. Mueller 56.1 Stmt.: Stewart ¶¶ 8-9.) Dr. Mueller denied the request, writing “Nothing on this form to support round the clock usage of Percocet. Remote [gunshot wounds] does not equate severe pain necessitating strong narcotic analgesia.” (Carinci Rpt., dkt. no. 361-20 at W Stewart 104.) Dr. Mueller suggested Dr. Lee “explore safer avenues” of treatment with Plaintiff. (Id.) In her declaration, Dr. Mueller stated “[t]he information provided on the MWAP Request was not sufficient to justify the renewal of the prescription for Percocet” and that in her opinion “there was ... nothing on the MWAP Request form” to support its administration. (Declaration of Dr. Susan C. Mueller, dated May 20, 2021 (“Mueller Decl.: Stewart”) [23-CV-5668, dkt. no. 17] ¶¶ 23, 26.) Dr. Mueller also referenced information provided by Dr. Lee on the MWAP Request form regarding Plaintiff's condition and noted that his medical records indicated he had broken his leg in 2017. (See id. ¶¶ 25-26.) Dr. Mueller argues that Plaintiff cannot satisfy the subjective prong of the deliberative indifference inquiry because the evidence demonstrates she made a principled decision “based upon the MWAP Request, her review of the Plaintiff's medical records, and her medical knowledge and experience[.]” (Memorandum of Law in Support of State Represent Defendant's Motion for Summary Judgment, dated November 15, 2023 (“SRD MSJ Br.: Stewart”) [23-CV-5668, dkt. no. 20] at 12-13.) However, viewing the record in the light most favorable to the non-moving party, there is an issue of fact as to whether Dr. Mueller reviewed Plaintiff Stewart's medical records to form an independent medical judgment or instead relied solely on the information presented in the MWAP Request form and the MWAP policies. While Dr. Mueller states that she “review[ed] the information submitted for this patient” (Mueller Decl.: Stewart ¶ 28), she never specifies what information that included. Similarly, Dr. Mueller states that generally it was her “practice to consider all criteria in determining whether prescription of an MWAP medication would be appropriate” (id. ¶ 18), but never explains the criteria. There is also no indication that Dr. Mueller specifically considered the efficacy of Plaintiff Stewart's prior Percocet treatment or the risk that his pain would worsen if he was taken off Percocet in favor of an alternative treatment. Under these circumstances, a reasonable jury could conclude that Dr. Mueller disregarded an excessive risk that Plaintiff Stewart would suffer a great and unnecessary degree of chronic pain if she did not approve the renewal of his Percocet prescription. See Brock, 315 F.3d at 164. According, Dr. Mueller's motion for summary judgment (23-CV-5668, dkt. no. 16) as to Plaintiff Stewart's claim for deliberate indifference is denied. K. Qualified Immunity Defense In evaluating Defendants’ qualified immunity defense, the Court first seeks to identify the right that Plaintiffs assert was clearly established and that Defendants violated. See Knight v. N.Y. State Dep't of Corr., No. 18-CV-7172, 2022 WL 1004186, at *18 (S.D.N.Y. Mar. 30, 2022). Plaintiffs assert that the clearly established right each of the Defendants should have known he or she was violating was each Plaintiff's right to be free from prison officials’ “deliberate[ ] indifferen[ce] to an inmate's serious medical needs.” (Pl. Opp'n at 67.) In each of their motions for summary judgment, the State Represented Defendants argue the right was narrower, defining it in terms of each Plaintiff's specific treatment. For example, with respect to Plaintiff Gradia, the State Represented Defendants argue the right RMD Mueller violated was “in August 2017 to deny a request for Ultram, and in June 2018 to deny a request for Neurontin—that is, to deny long-term prescriptions of medications that have addictive qualities and potentially serious side-effects—in favor of safer treatment strategies and medications.” (SRD MSJ Br.: Gradia at 29.) Similarly, for Plaintiff Dockery, the SRDs define the right violated by RMD Mueller as Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 41 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 21 the “denial of an MWAP request seeking to restart Plaintiff on Neurontin” and the right violated by RMD Dinello as the “denial of an MWAP request to treat Plaintiff with Neurontin and recommend[ation] that Neurontin be gradually tapered over a four week period and replaced with a safer non-habit forming nerve modulating agent effective in MS treatment instead.” (Memorandum of Law in Support of State Represented Defendants’ Motion for Summary Judgment, dated November 15, 2023 (“SRD MSJ Br.: Dockery”) [23- CV-5658, dkt. no. 35] at 30-32.) *25 Dr. Chung Lee does not articulate a particular right, instead arguing that “[t]he constitutional violation here is dependent on a myriad of unique facts regarding individual treatment decisions” and cannot fit within any clearly established right, thereby entitling him to qualified immunity. (Defendant Chung Lee's Amended Memorandum of Law in Support of his Motion for Summary Judgment, dated November 21, 2023 (“Lee MSJ Br.: Knight”) [23-CV-5662, dkt. no. 19] at 21.) 8 At a minimum, Plaintiffs have a “right to be free from deliberate indifference to serious medical needs.” See LaBounty, 137 F.3d at 74 (rejecting defendants’ narrower view that the right at issue in the plaintiff's Eighth Amendment claim was a “right to be free from crumbling asbestos”). However, because Court of Appeals precedent demands defining the “clearly established right” with specificity as to the particular conduct, see Vega, 963 F.3d at 275, the Court finds that a narrower definition of Plaintiffs’ right at issue is required. 1. The SRDs’ Qualified Immunity Defense In Griffin v. Amatucci, an inmate at Upstate Correctional Facility alleged that a doctor and a nurse at the facility had violated the Eighth Amendment “by refusing to provide him with a treating-physician-recommended humidifier for his ... [CPAP] machine pursuant to a policy of not providing humidifiers.” 611 F. App'x at 734. The Court of Appeals relied on Johnson v. Wright and Brock v. Wright to conclude that the “clearly established right” at issue was a right to be free from a “reflexive application of [a] ... policy in the face of a contrary recommendation by [plaintiff's] treating physician[.]” Id. at 735. Given the similarities between the allegations in Griffin and the ones Plaintiffs have put forth in the instant cases, the Court finds the Court of Appeals’ reasoning persuasive. Johnson, on which the Court of Appeals relied in Griffin, is even more on point to the facts of the instant cases and provides what this Court finds is the appropriately tailored right in the assessment of the State Represented Defendants’ qualified immunity defense. In Johnson, the plaintiff claimed New York State corrections officials were deliberately indifferent to his serious medical needs because the officials had denied a request from the plaintiff's treating physician to prescribe the plaintiff a particular medication to treat his Hepatitis C. See Johnson, 412 at 400-02. The officials had denied the physician's request because a department policy in effect at the time permitted the officials to deny such treatment if an inmate had a recent history of substance abuse, which the plaintiff did. See id. at 401. In its review of the plaintiff's argument that the officials had violated the Eighth Amendment, the Court of Appeals framed the question in the case as whether “the application of the policy” of denying Hepatitis C medications to inmates with a history of substance abuse “in plaintiff's case could have amounted to deliberate indifference to plaintiff's medical needs.” Id. at 404. In vacating the district court's decision granting summary judgment to the defendant corrections officials on this question, the Court of Appeals held that a jury could find that “the defendants acted with deliberate indifference by reflexively relying on the medical soundness of the ... substance abuse policy when they had been put on notice that the medically appropriate decision could be, instead, to depart from the [policy] and prescribe” the medication the inmate's treating physician recommended. Id. at 406. The Court of Appeals articulated a similar question of deliberate indifference two years prior in Brock: “whether following [a] policy” forbidding certain treatments absent particular symptoms resulted in unconstitutional deliberate indifference to the plaintiff's medical needs. See Brock, 315 F.3d at 162, 166. *26 The Court finds that the Eighth Amendment right the Court of Appeals articulated in Johnson—the right to be free from reflexive application of a policy denying a medication to any inmate with substance abuse risk—provides the clearly established right to analyze the State Represented Defendants’ qualified immunity argument given the degree of similarity to the allegations each Plaintiff has put forth. The Court also concludes that the right defined in Johnson is defined specifically enough to render it clearly established in the context of Eighth Amendment claims. See Collymore, 74 F.4th at 30; Vega, 963 F.3d at 275. 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Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 22 As in Johnson and Brock, the ten related actions that this Opinion addresses involve (1) a treating physician's request to implement a particular treatment, (2) senior corrections officials’ rejection of that request, (3) due to a policy favoring such rejection. And, as in Johnson specifically, the treating physicians here sought to prescribe medications that the officials rejected because the policy in question favored such rejections due to the risk of substance abuse. In both Johnson and Brock, the Court of Appeals held that granting summary judgment for the prison officials would be inappropriate because a jury could conclude, based on the evidence, that the prison officials’ deference to policy constituted deliberate indifference because it was made without sufficient consideration of the inmate's medical needs or of the treating physician's recommendation. See Johnson, 412 F.3d at 404-06; Brock, 315 F.3d at 167. Therefore, the Court finds that the Court of Appeals has spoken sufficiently clearly in holding that inmates have an Eighth Amendment right not to have prison officials rely on a policy to reject a request for a medication when the officials know it might be medically appropriate to prescribe the medication instead. Because the Court of Appeals ruled on this right nearly two decades ago, and later reiterated the right in Griffin, it should have been “clear to a reasonable officer” that Defendants’ treatment of Plaintiffs was unlawful. See Ziglar, 582 U.S. at 152. Accordingly, Plaintiffs’ rights were clearly established and not subject to the SRDs’ qualified immunity defense. See id. 2. Dr. Lee's Qualified Immunity Defense Dr. Lee argues that there can be no clearly established constitutional right because the violation depends on Dr. Lee's individual treatment decisions and Dr. Lee provided “professional, adequate, and reasonable treatment” to Plaintiff Knight. (See Lee MSJ Br.: Knight at 19-21.) Dr. Lee would be entitled to immunity “if either (a) [his] action[s] did not violate clearly established law, or (b) it was objectively reasonable for [him] to believe that his action did not violate such law.” Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir. 2001) (internal quotations and citations omitted). However, the Court finds that the particular right clearly established by law as applicable to Dr. Lee—as distinct from each Plaintiff's clearly established right to be free from the RMDs’ reflexive application of a policy in determining his medical treatment—is the right to be free from a physician's deliberate indifference to his medical needs through “consciously choos[ing] an easier and less efficacious treatment plan.” Chance, 143 F.3d at 703 (internal quotations and citations omitted). The Court of Appeals not only articulated this right in Chance v. Armstrong but reaffirmed in Brock that it is a right protected by the Eighth Amendment. See Brock, 315 F.3d at 167. *27 As the Court described in detail above, there remain genuine issues of material fact about whether Dr. Lee's failure to adjust Plaintiff Knight's medications to alleviate his pain, in the face of Plaintiff's repeated complaints of pain so severe he was unable to walk, constituted knowing and deliberate indifference to Plaintiff's medical needs, including by consciously choosing an easier, less efficacious treatment plan than was warranted. See Chance, 143 F.3d at 703. Thus, at this stage, the Court cannot conclude as a matter of law that Dr. Lee did not violate a clearly established right. Because of those same disputed facts, the Court cannot find that Dr. Lee is entitled to qualified immunity on the basis of her objective reasonableness. “[W]here ... the objective reasonableness of an officer's actions depends on disputed facts, summary judgment based on qualified immunity is properly denied.” Knight, 2022 WL 1004186, at *18 (internal quotations and citations omitted). This is because the question of reasonableness in a physician's treatment of a prisoner is “not whether [the physician's] actions were objectively reasonable based on [the physician's] own version of his [or her] actions” but on whether the physician's actions “were objectively reasonable based on the record viewed in the light most favorable to [the plaintiff] and with all inferences drawn in [the plaintiff's] favor.” Warren v. Chakravorty, No. 03- CV-8736, 2006 WL 2067736, at *8 (S.D.N.Y. July 25, 2006) (denying summary judgment based on a qualified immunity defense). Taking the record in the light most favorable to Plaintiff Knight, as the Court must on Dr. Lee's motion, the Court concludes that a reasonable jury could conclude that Dr. Lee's failure to prescribe Lyrica or otherwise adjust Plaintiff Knight's medications during a multi-month period was not objectively reasonable, given Dr. Lee's intimate knowledge of Plaintiff's conditions and his earlier prescriptions for pain medications. Accordingly, Dr. Lee is not entitled to summary judgment on the basis of qualified immunity. See Newburgh Enlarged Sch. Dist., 239 F.3d at 250; Knight, 2022 WL 1004186, at *18; Chance, 143 F.3d at 703. L. Exhaustion of Remedies Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 43 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 23 The State Represented Defendants claim that certain of Plaintiffs Dockery, Gradia, and Pritchett's claims stemming from specific MWAP denials must be dismissed for failure to exhaust their administrative remedies. (See SRD MSJ Br.: Dockery at 16-20; SRD MSJ Br.: Gradia at 31-32; Memorandum of Law in Support of State Represented Defendants’ Motion for Summary Judgment, dated November 16, 2023 (“SRD MSJ Br.: Pritchett”) [23- CV-5664, dkt. no. 22] at 24-26.) Under the Prisoner Litigation Reform Act (“PLRA”), “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “The PLRA's exhaustion requirement ‘applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.’ ” Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)). A court may not excuse a failure to exhaust, even to take “special circumstances” into account. Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). However, a prisoner cannot be required to exhaust administrative remedies that are not available to him. Id. at 1858. “[A]n inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’ ” Id. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). An administrative procedure is “unavailable” (1) when it operates as a simple dead end, with officers unable or consistently unwilling to provide any relief to aggrieved inmates; (2) when it is so opaque that no ordinary prisoner can discern or navigate it; and (3) when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. Id. at 1859–60. The Court of Appeals has remarked “that the three circumstances discussed in Ross do not appear to be exhaustive” but has declined to “opine on what other circumstances might render an otherwise available administrative remedy actually incapable of use.” Williams v. Corr. Officer Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016). “[T]he test for deciding whether the ordinary grievance procedures were available must be an objective one: that is, would a similarly situated individual of ordinary firmness have deemed them available.” Lucente v. Cnty. of Suffolk, 980 F.3d 284, 311-12 (2d Cir. 2020). *28 In addition, “a claim may be exhausted when it is closely related to, but not explicitly mentioned in an exhausted grievance.” Colón v. N.Y.State Dep't of Corr. & Cmty. Supervision, No. 15-CV-7432, 2019 WL 5294935, at *7 (S.D.N.Y. Oct. 17, 2019) (citation omitted). Ultimately, in order to exhaust under the PLRA, a prisoner must allege facts sufficient to allow DOCCS to take appropriate responsive measures. See Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004), overruled on other grounds by Woodford v. Ngo, 548 U.S. 81 (2006); see also Espinal v. Goord, 558 F.3d 119, 126 (2d Cir. 2009) (“The point is that prison officials [have] the necessary information to investigate the complaints and the opportunity to learn which officers were involved in the alleged incident.”). First, as to Plaintiff Dockery, the State Represented Defendants argue that Plaintiff failed to exhaust for RMD Mueller's August 2018 denial of Neurontin. (SRD MSJ Br.: Dockery at 18.) 9 However, the State Represented Defendants acknowledge that Plaintiff Dockery employed the appropriate administrative procedures with respect to DOCCS’ denial of Neurontin in September 2017. (Id. at 18-19.) Where “a prior grievance identifies a specific and continuing complaint that ultimately becomes the basis for a lawsuit,” Johnson v. Killian, 680 F.3d 234, 238-39 (2d Cir. 2012), “the prior grievance is sufficient to exhaust a prisoner's administrative remedies with respect to continuing violations at the facility.” Alster v. Fischer, No. 09-CV-6510, 2017 WL 3085842, at *9 (W.D.N.Y. July 20, 2017). The Court concludes that, as in Johnson, Plaintiff Dockery's September 2017 grievance put DOCCs on notice of and provided it with an opportunity to resolve the same problem that continued intermittently over subsequent years with respect to Plaintiff's pain. 680 F.3d 234 at 238-39. The issue Plaintiff Dockery would have raised in 2018 was identical to the issue he had raised in 2017— the denial of Neurontin. Moreover, the record indicates that Plaintiff's 2017 grievance was not addressed until January 30, 2019. (See Agnew Decl., Ex. 43 [23-CV-5660, dkt. no. 32-55] at 2.) Accordingly, Plaintiff Dockery's 2017 grievance regarding Neurontin was sufficient to exhaust his administrative remedies regarding the 2018 denial of Neurontin. Second, with respect to Plaintiff Gradia, the State Represented Defendants claim Plaintiff failed to exhaust his remedies for the June 2017 MWAP request for Neurontin. (SRD MSJ Br.: Gradia at 32.) 10 Likewise, the State Represented Defendants contend that Plaintiff Pritchett failed to exhaust available remedies as to his claim against RMD Dinello arising from Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 44 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 24 the January 2017 request for Lyrica. (SRD MSJ Br.: Pritchett at 25-26.) Even assuming Plaintiffs failed to submit grievances for certain MWAP denials, the Court agrees with Plaintiffs that the record demonstrates administrative remedies were unavailable to Plaintiffs. (Pl. Opp'n at 72-73.) As discussed at length supra Part IV, the record is replete with instances whereby Plaintiffs in these related actions submitted complaints and grievances regarding their MWAP denials and prison officials were either unable or unwilling to provide any relief, pursuant to the MWAP policy. Plaintiffs should not be denied the opportunity to pursue their grievances in federal court where administrative procedures operated as a dead end to their claims. See Priatno, 829 F.3d at 123-24. 11 Accordingly, the Court declines to dismiss Plaintiffs Dockery, Gradia, or Pritchett's claims for failure to exhaust. V. Conclusion *29 For the reasons set forth above, the motions for summary judgment before the Court are GRANTED and DENIED as follows: 1. Plaintiff Daniels: State Represented Defendants’ motion for summary judgment (23-CV-5654, dkt. no. 14) is GRANTED. 2. Plaintiff Dickinson: State Represented Defendants’ motion for summary judgment (23-CV-5657, dkt. no. 14) is DENIED. 3. Plaintiff Dockery: State Represented Defendants’ motion for summary judgment (23-CV-5658, dkt. no. 22) is GRANTED in part and DENIED in part. The motion is GRANTED as to Dr. Hammer and NP Salotti, and DENIED as to Drs. Mueller and Dinello. 4. Plaintiff Gradia: State Represented Defendants’ motion for summary judgment (23-CV-5660, dkt. no. 18) is GRANTED in part and DENIED in part. The motion is GRANTED as to Dr. Hammer and DENIED as to Drs. Mueller and Dinello. 5. Plaintiff Hernandez: State Represented Defendants’ motion for summary judgment (23-CV-5661, dkt. no. 29) is DENIED. Dr. Mantaro's motion for summary judgment (23-CV-5661, dkt. no. 24) is GRANTED. 6. Plaintiff Knight: Dr. Lee's motion for summary judgment (23-CV-5662, dkt. no. 12) is DENIED. 7. Plaintiff Mathis: State Represented Defendants’ motion for summary judgment (23-CV-5663, dkt. no. 14) is DENIED. 8. Plaintiff Pritchett: State Represented Defendants’ motion for summary judgment (23-CV-5664, dkt. no. 16) is DENIED. 9. Plaintiff Rivera Cruz: State Represented Defendants’ motion for summary judgment (23-CV-5667, dkt. no. 15) is DENIED. 10. Plaintiff Stewart: State Represented Defendants’ motion for summary judgment (23-CV-5668, dkt. no. 16) is DENIED. Counsel for the parties shall confer and inform the Court by letter no later than April 11, 2025 of how they propose to proceed. The Clerk of the Court shall also docket this order in each of the following cases listed below and close each of the docket entries listed below. 1. 23-CV-5654, dkt. no. 14 2. 23-CV-5657, dkt. no. 14 3. 23-CV-5658, dkt. no. 22 4. 23-CV-5660, dkt. no. 18 5. 23-CV-5661, dkt. no. 24 6. 23-CV-5661, dkt. no. 29 7. 23-CV-5662, dkt. no. 12 8. 23-CV-5663, dkt. no. 14 9. 23-CV-5664, dkt. no. 16 10. 23-CV-5667, dkt. no. 15 11. 23-CV-5668, dkt. no. 16 SO ORDERED. All Citations Slip Copy, 2025 WL 949842 Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 45 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 25 Footnotes 1 For omnibus submissions and documents that are relevant to all of the related actions, the Court will use general definitions. For documents that are specific to only one individual action, the Court will use definitions which identify the action's Plaintiff. 2 The Court will refer to the class action, 19-CV-8173, as “Allen I.” 3 Page numbers cited herein reflect ECF page numbers, rather than page numbers of the parties’ submissions. The Court will also cite page numbers using the various methods of pagination used by the parties in their exhibits (such as MD 000406). 4 Because some of the individual actions name only certain State Represented Defendants as defendants, their motions naturally only seek to dismiss the claims against the State Represented Defendant(s) named in that action. Dr. Mueller is named as a defendant in nine of the ten severed actions, Dr. Dinello is a defendant in three, Dr. Hammer is a defendant in two, and NP Salotti is a defendant in one. 5 Two of the motions seek to dismiss the claims asserted by Plaintiff Hernandez, one filed on behalf of State Represented Defendant Dr. Susan Mueller and one filed on behalf of Dr. Mantaro. 6 Plaintiff's Opposition incorrectly notes the date of the MWAP as September 28, 2018, (Pl. Opp'n at 40), but the documents cited establish the date was 2017. 7 Dr. Carinci notes that several months thereafter on May 22, 2019, the “Shawangunk Inmate Liaison Committee noted that the ‘inmates are complaining that they are not being treated adequately for their injuries and that regardless of how severe or serious they are, Dr. Lee just about seems to always prescribe Tylenol or Motrin.’ [ ] Mr. Rivera-Cruz continued to complain of pain and being provided only Tylenol or Motrin. [ ] After complaining of leg pain on December 3, 2019, he was issued Tylenol and Motrin.” (Id.) 8 Because the Court determines Dr. Mantaro's care did not amount to deliberate indifference and grants her motion for summary judgment, see supra Part IV.E, the Court need not evaluate her qualified immunity argument. (See Memorandum of Law in Support of Her Motion for Summary Judgment (“Mantaro MSJ Br.: Hernandez”) [23-CV-5661, dkt. no. 28] at 19.) 9 The State Represented Defendants also argue that Plaintiff Dockery failed to exhaust his claims against NP Saloti and RMD Hammer. (Id.) Given the Court's holding that NP Salotti and RMD Hammer are entitled to summary judgment on these claims (see supra Part IV.C), the Court need not address these exhaustion arguments. 10 The State Represented Defendants argue Plaintiff Gradia failed to exhaust for all claims except the June 2018 and August 2017 denials (id.), but as discussed supra Part IV.D, the Court confined its decision to the only two denials addressed in Plaintiffs’ Opposition: the denials in June 2017 and August 2017. (See Pl. Opp'n at 32-33.) 11 Where the facts regarding exhaustion are in dispute, courts have denied motions for summary judgment and held an evidentiary hearing for the fact-finder to assess the credibility of witnesses and evidence on exhaustion. See Jenkins v. Officer S, No. 19-CV-10728 (KMK), 2023 WL 6259667, at *8 (S.D.N.Y. Sept. 26, 2023). Because the Court determines that DOCCs’ administrative procedures involving MWAP operated as a dead end such that administrative remedies were unavailable to Plaintiffs, there is no need for an evidentiary hearing. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 46 of 107
Daniels v. Mueller, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 26 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 47 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 974347 Only the Westlaw citation is currently available. United States District Court, E.D. New York. Thomas DONOHUE, Plaintiff, v. Dr. Vincent MANETTI, BY his employer ARMOR CORRECTIONAL HEALTH SERVICES, Denise Brady by her employer Armor Correctional Health Services, Defendants. 2:15-CV-636 (PK) | Signed March 31, 2025 Attorneys and Law Firms Albert Darnell Manuel III, Cobia Malik Powell, Frederick K. Brewington, Law Offices of Frederick K. Brewington, Hempstead, NY, for Plaintiff. Cathleen Kelly Rebar, Jayne L. Pickup, Rebar Kelly, Blue Bell, PA, for Defendant Dr. Vincent Manetti. MEMORANDUM AND ORDER Peggy Kuo, United States Magistrate Judge: *1 Thomas Donohue (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 1983, alleging that he was deprived of his rights under the Eighth and Fourteenth Amendments of the U.S. Constitution by Dr. Vincent Manetti, Nurse Denise Brady, and their employer Armor Correctional Health Services (collectively, “Defendants”). (Compl. at 1, Dkt. 1.) Before the Court is Defendants’ Motion for Summary Judgment (“Motion”). (Dkt. 109.) For the reasons set forth below, the Motion is granted in part and denied in part. FACTUAL BACKGROUND Unless otherwise stated, the following facts are taken from Defendants’ Statement of Undisputed Facts (“Defs. 56.1,” Dkt. 109-1), Plaintiff's Statement of Disputed Facts (“Pl. 56.1 Opp.,” Dkt. 109-12 at 1–31 1 ), Plaintiff's Counterstatement of Material Facts (“Pl. 56.1,” 109-12 at 32–45), and exhibits attached to the Motion (see Declaration of Dale McLaren (“McLaren Decl.”), Dkt. 109) and Plaintiff's opposition to the Motion (see Declaration of Frederick K. Brewington (“Brewington Decl.”), Dkt. 109-13 2 ). Unless otherwise noted, the facts are agreed upon by the parties. I. The Parties Armor Correctional Health Services (“Armor”) provides medical services to inmates at Nassau County Correctional Center (“NCCC”) pursuant to a contract with Nassau County. (Pl. 56.1 ¶¶ 1–2.) Dr. Vincent Manetti worked as a psychiatrist for Armor from June 2011 to October 2016. (Defs. 56.1 ¶ 25; Pl. 56.1 Opp. ¶ 25.) Denise Brady began working for Armor in 2011 as a Licensed Practical Nurse (“LPN”) and became a Registered Nurse (“RN”) in 2015. (Defs. 56.1 ¶ 50; Pl. 56.1 Opp. ¶ 50.) Plaintiff was incarcerated at NCCC from September 19, 2014 to June 18, 2015. (Defs. 56.1 ¶ 1, 4, 13; Pl. 56.1 ¶¶ 1, 4, 13; Memorandum of Law in Support of the Armor Defendants’ Motion for Summary Judgment (“Def. Mem.”) at 3, Dkt. 109-11; Plaintiff Deposition Transcript (“Pl. Tr.”) 13:24, Ex. D. to McLaren Decl., Dkt. 109-4.) II. Plaintiff's Arrest and Admission to Nassau County Correctional Center After his arrest on September 18, 2014, Plaintiff underwent a medical evaluation at Nassau University Medical Center (“NUMC”), where he complained of body aches, tremors, moderate pain, nausea, restlessness, and anxiety; he also indicated that he had a history of alcohol and heroin dependence and had ingested beer and heroin shortly before his arrest. (NUMC Emergency Physician Record (“NUMC Record”), Ex. B to McLaren Decl., Dkt. 108-1 at 2.) The NUMC Record states that Plaintiff is allergic to non-steroidal anti-inflammatory drugs (“NSAIDs”). (Id.) Plaintiff was diagnosed with opioid abuse and given a treatment plan of methadone. (NUMC Patient Discharge Instructions, Ex. B to McLaren Decl., Dkt. 108-1 at 1.) *2 The next day, when Plaintiff was transferred to NCCC, Armor performed its own assessment of Plaintiff's physical and mental health. 3 (Defs. 56.1 ¶¶ 5, 8; Pl. 56.1 Opp. ¶¶ 5, 8.) Armor medical records dated September 19, 2014 indicate that Plaintiff has a history of depression and anxiety, for which he was hospitalized in 1988 and 2011, that he has taken the psychiatric medications Klonopin and nortriptyline in the past, and that he was not suicidal. (“Armor Health Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 48 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Assessment,” Ex. C to McLaren Decl., Dkt. 108-2 at 6–7; “Armor Mental Health Screening,” Ex. C to McLaren Decl., Dkt. 108-2 at 8.) The records also report that Plaintiff had neck surgery in 2007 and that he is allergic to NSAIDs. (Armor Health Assessment at 6.) Plaintiff's complaints at that time were described as “anxiety, diarrhea, chills, restlessness, [and] achiness,” and a tremor was noted. (Id.) Plaintiff was assessed with opioid dependence as a chronic health problem, and the screener noted that there was “[e]vidence of mental health condition” but that Plaintiff “presents as stable.” (Id. at 8; see Defs. 56.1 ¶ 8; Pl. 56.1 Opp. ¶ 8.) Plaintiff was admitted to the medical floor at NCCC and put in a psychiatric cell. (Defs. 56.1 ¶ 10; Pl. 56.1 Opp. ¶ 10.) He was put on a 6-day Valium taper and prescribed Thiamine to prevent symptoms of alcohol withdrawal. (“Mendelsohn Report” at 5, Ex. D to Brewington Decl., Dkt. 109-18; Ex C-3 to Brewington Decl., Dkt. 108-5 at 17.) III. Mental Health Treatment Despite the initial assessment that Plaintiff was not suicidal, at some point, he was placed on suicidal precautions, resulting in his being seen by Dr. Manetti on September 23, 2014. (Defs. 56.1 ¶ 28; Pl. 56.1 Opp. ¶ 28; Ex. C to McLaren Decl., Dkt. 108-2 at 18.) During the visit, Plaintiff told Dr. Manetti, “I feel pain and I don't want to live.” (Id. at 18; see Defs. 56.1 ¶ 32; Pl. 56.1 Opp. ¶ 32.) Dr. Manetti found Plaintiff “behaviorally controlled, mood is euthymic”—that is, he was neither depressed nor euphoric—and noted that he had suicidal ideations. (Defs. 56.1 ¶ 33–34; Pl. 56.1 Opp. ¶¶ 33–34; Ex. C to McLaren Decl., Dkt. 108-2 at 18.) Dr. Manetti ordered that Plaintiff remain under constant supervision, which meant that he would be seen by a mental health professional daily. (Defs. 56.1 ¶¶ 36–38; Pl. 56.1 Opp. ¶¶ 36–38.) According to his September 23, 2014 note, Dr. Manetti did not personally prescribe any medication to Plaintiff. (Defs. 56.1 ¶ 37; Pl. 56.1 Opp. ¶ 37.) Plaintiff had been previously incarcerated at Fishkill Correctional Facility (“Fishkill”), where he received Ultram 4 and Neurontin 5 twice a day for pain and nortriptyline or Amitriptyline for his mental health. (Pl. Tr. 55:19–56:10, 57:2–58:3.) When he was released from Fishkill in July 2014, Plaintiff was given prescriptions for Neurontin, Ultram, and Nortryptylene. (Id. 79:8–80:13.) Plaintiff alleges that, despite this, Dr. Manetti told him, “Things are different now ... we don't hand out medication like that.” (Pl. Tr. 103:3–6.) Dr. Manetti denies making that statement. (Manetti Tr. 131:20–132:19.) At Dr. Manetti's request, Plaintiff authorized Fishkill to release his initial psychiatric evaluation and verify his medications. (Id. 52:4–8; “Sept. 23 Release of Information,” Dkt. 108-2 at 9; see Defs. 56.1 ¶ 29; Pl. 56.1 Opp. ¶ 29.) The same evening he saw Dr. Manetti, Plaintiff experienced “seizure-like activities” and was taken to NUMC. (Pl. 56.1 ¶¶ 8, 64.) After a CT scan came back negative, NUMC gave him medication for seizures and recommended that he follow up with neurology. (Id. ¶ 9.) *3 Plaintiff returned to NCCC and on September 24 was seen by Dr. Manetti's supervisor, Dr. Ronald Longo. (“Longo Sept. 24 Note,” Ex. C-1 to Brewington Decl., Dkt. 108-3 at 12.) Dr. Longo noted that Plaintiff was no longer suicidal and that he complained of neck pain. (Id.; see Herrington Report at 3.) On September 26, 2014, Plaintiff signed a release authorizing CVS Pharmacy to verify his current medication. (“CVS Release,” Ex. C to McLaren Decl., Dkt. 108-2 at 10.) According to Plaintiff's expert Dr. Nathaniel Mendelsohn, a call to CVS on that date “confirms that [Plaintiff] last picked up Nortriptyline on 8/14/14.” (Mendelsohn Report at 6; see Defs. 56.1 ¶ 11; Pl. 56.1 Opp. ¶ 11.) Plaintiff went to NUMC again on September 29, 2014 and was seen for seizures. He was given seizure medication, discharged, and directed to follow up with neurology. (Ex. C-3 to Brewington Decl., Dkt. 108-5 at 43.) On October 3, 2014, at his second meeting with Plaintiff, Dr. Manetti noted that Plaintiff was hostile, overly dramatic, and angry, and that Plaintiff demanded benzodiazepines, which are typically for anxiety, stating, “I want meds because I'm in jail.” (“Manetti Oct. 3 Note,” Ex. C to McLaren Decl. at 17; Defs. 56.1 ¶¶ 39, 40, 42; Pl. 56.1 Opp. ¶¶ 39, 40, 42.) Plaintiff acknowledges that this statement appears in the medical record but denies having made it. (Pl. 56.1 Opp. ¶ 42.) Dr. Manetti indicated that Plaintiff did not exhibit signs of depression. (Defs. 56.1 ¶ 43; Pl. 56.1 Opp. ¶ 43. 6 ) Writing in his note, “no acute need for meds” (Manetti Tr. 67:14–15), Dr. Manetti did not prescribe Plaintiff any medication because he did not know what, if any, medications Plaintiff was previously taking; was concerned that Plaintiff Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 49 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 might be malingering; and believed that it was inadvisable to prescribe controlled substances to someone with a history of polysubstance abuse. (Defs. 56.1 ¶¶ 40, 44, 45 7 ; Manetti Tr. 56:2–5, 71:7–12.) Dr. Manetti also re-faxed the release for Plaintiff's records to Fishkill because he had not gotten a response to the initial request. (Manetti Tr. 73:19–23.) Dr. Manetti testified at his deposition that he never learned which medications Plaintiffs was previously taking. (Id. 56:17–25; see Def. 56.1 ¶ 41; Pl. 56.1 Opp. ¶ 41.) On October 12, 2014, Plaintiff was again seen at NUMC for seizures. (See Ex. C-3 to Brewington Decl. at 27.) He was given seizure medication and Neurontin and told to follow up with neurology. (See id. at 27, 32.) A Medication Administration Record indicates that on October 15, 2014, “Dr. Marcos” prescribed nortriptyline to Plaintiff, to be taken daily for thirty days. (Ex. C-1 to Brewington Decl., Dkt. 108-3 at 5.) Plaintiff does not dispute this in his Counterstatement of Facts, expert report, or deposition testimony. (See Pl. 56.1 ¶ 69 (“On 10/15/14, nortriptyline 25 mg is started by Dr. Marcos, who is not a psychiatrist.”); Mendelsohn Report at 6 (same)). He also testified that he began receiving nortriptyline shortly after he arrived at NCCC. 8 (See Pl. Tr. 80:7–24.) *4 Nevertheless, Plaintiff claimed he “was never given Nortriptyline” (Pl. 56.1 Opp. ¶ 11) and testified that during his entire stay at NCCC, he “received no mental health medication.” (Pl. Tr. 87:3–15.) The prescription for nortriptyline was discontinued on November 11, 2014 and not renewed. (Mendelsohn Report at 7; Ex. C-1 to Brewington Decl. at 6; Ex. C-5 to Brewington Decl. at 26.) On November 30, 2014, Plaintiff filed a grievance, stating that he had been on mental health medication for depression and anxiety since the 1980s and had not received psychiatric medication at NCCC. (“Nov. 30 Grievance,” Compl. at 18.) On December 10, 2014, the Grievance Coordinator denied Plaintiff's grievance. (Id.) On December 11, 2014, Plaintiff appealed the Grievance Coordinator's decision, which the Chief Administrative Officer denied on December 23, 2014. (Id.) On December 31, 2014, Plaintiff appealed the Chief Administrative Officer's decision to the Citizen's Policy and Complaint Review Counsel at the Commission of Correction. (Id. at 19). Plaintiff does not know if he ever received a final decision on the appeal. (Pl. Tr. 99:16–100:3.) Until his release from NCCC on June 18, 2015, Plaintiff was seen by various social workers on mental health rounds who documented his mental state, which indicated that Plaintiff was often depressed, was asking for medication, or was asking to see Dr. Manetti. 9 Plaintiff claims that as a result of not being given psychiatric medication, he “suffered extensive mental anguish and suffering during his incarceration.” (Pl. 56.1 ¶ 85.) He states that he attempted suicide in his cell in December 2014 (id. ¶ 82), although the incident was not documented. Plaintiff experienced panic attacks, was unable eat or sleep, felt like he was unable to breathe, and endured “crazy depression.” (Id. ¶ 81.) IV. Pain Management Treatment Plaintiff suffered from chronic pain in his lower back, neck, shoulders, and arms. (Defs. 56.1 ¶ 19; Pl. 56.1 Opp. ¶ 19.) On September 26, 2014, Plaintiff was prescribed Neurontin and Bengay for pain. (Ex. C-5 to Brewington Decl. at 35; Ex. C-4 to Brewington Decl. at 12.) On November 3, 2014, the pain medication Ultram was also ordered for Plaintiff. (Id. at 9.) On December 9, 2014, Neurontin was discontinued (Ex. C-1 to Brewington Decl. at 2), but records indicate that Plaintiff was taking it again by December 16, 2014 (Ex. C-4 to Brewington Decl. at 21). Plaintiff's prescription for Neurontin was discontinued and re-ordered at various times during his incarceration. (See, e.g., Ex. C to Brewington Decl., Dkt. 108-2 at 15 (Neurontin discontinued on Feb. 6, 2015); Ex. C-1 to Brewington Decl. at 2 (Neurontin discontinued on Dec. 9, 2014).) *5 On December 17, 2014, Plaintiff's Ultram prescription was discontinued. (Herrington Report at 4; Deposition Transcript of Denise Brady (“Brady Tr.”) 93:17–94:11, Ex. F to McLaren Decl., Dkt. 109-6; Ex. C-1 to Brewington Decl. at 2.) The corresponding order sheet states “Brady noted” next to the discontinuation order. (See Ex. C-5 to Brewington Decl. at 29.) Plaintiff testified that Ms. Brady told him that she was discontinuing his medication, walked away from him with a smirk, and came back and gave him ibuprofen—an NSAID to which he is allergic—instead of his prescribed Ultram medication. (Pl. Tr. 91:19–94:15.) Ms. Brady denies discontinuing Plaintiff's medication and states that as an LPN, Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 50 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 she did not have the authority to do so. (Defs. 56.1 ¶¶ 55, 56; Pl. 56.1 Opp. ¶¶ 55, 56.) Plaintiff does not dispute that, as an LPN, Ms. Brady was required to get permission before giving controlled substances to inmates. (Pl. 56.1 Opp. ¶ 58.) Her duties included filling medication carts, preparing medication administration records, distributing medication to inmates, and picking up orders from doctors. (Defs. 56.1 ¶ 50; Pl. 56.1 Opp. ¶ 50.) She was expected to know what medications inmates were allergic to. (Defs. 56.1 ¶ 52; Pl. 56.1 Opp. ¶ 52.) Plaintiff testified that after he took the ibuprofen Ms. Brady administered, “I had an episode, an allergic reaction. My heart was racing a million miles a minute, my throat got so tight and I couldn't breathe; I had an episode where I fainted out, man, I don't know what happened.” (Pl. Tr. 94:23–95:7.) Plaintiff testified that the next day, he confronted Ms. Brady, “angrily cursing and demand[ing] what she ordered [him].” (Id. 95:15– 18.) Ms. Brady replied, “Ibuprofen 800 milligrams,” and Plaintiff responded: “What, are you stupid, I am allergic to it, it is on the bottom of the sheet.” (Id. 95:19–21.) Plaintiff testified that Ms. Brady then said, “Oh, oh,” and left. (Id. 95:22.) After this incident, no Armor employee gave Plaintiff ibuprofen again. (Pl. Tr. 96:2–9.) In the Complaint, Plaintiff describes the incident differently. He alleges that when he confronted Ms. Brady the day after his allergic reaction, she responded, “I was hoping you would have died.” (Pl. 56.1 ¶ 66; Compl. ¶ 33; id. at 16 (attaching copy of Plaintiff's grievance form dated Dec. 17, 2014).) Ms. Brady denies having made any of these statements or giving Plaintiff an NSAID. (Defs. 56.1 ¶ 59.) Plaintiff filed a grievance on December 17, 2014, stating that while he was ordered Ultram for pain, he was administered instead medication that he was allergic to. (Compl. at 20– 21, 16–17.) He requested that he be given medications “ordered for [him] by specialists” and sought “an order of protection” against Ms. Brady. (Id. at 20.) Plaintiff states that his grievance was “accepted” and that Ms. Brady was not allowed to interact with him anymore. (Id.; Pl. Tr. 101:9–13.) Ultram was re-ordered for Plaintiff on December 30, 2014. (Ex. C-5 to Brewington Decl. at 29.) There are gaps in Plaintiff's receipt of Ultram on various dates in November and December 2014 and between February 1, 2015, and February 5, 2015. (Pl. 56.1 ¶ 44; Herrington Report at 7–8.) On March 23, 2015, Plaintiff's Ultram dosage was reduced (Herrington Report at 4; Ex. C-4 to Brewington Decl. at 3), and, on April 10, 2015, it was restored (id. at 5). *6 Throughout Plaintiff's incarceration at NCCC, he wrote approximately 78 sick call notes “complaining of untreated pain, lack of renewal of pain medication, failure of doctors to treat and the discontinuing of medication, among other complaints.” (Pl. 56.1 ¶ 11; see Exs. J-1 & J-2 to Brewington Decl., Dkt. 108-9 & 108-10.) 10 Plaintiff also wrote sick call requests asking that medication be renewed. For example, on February 4, 2015, Plaintiff wrote, “My pain med (Tramadol) ran out on 1-29-15.” (Ex. J-1 to Brewington Decl. at 32.) Several of Plaintiff's sick call requests state that his pain medication will run out in the future and that he will need it renewed. (See, e.g., Ex. J-1 to Brewington Decl. at 27, 42-44, 46; Ex. J-2 to Brewington Decl. at 7.) Many of Plaintiff's medications were also prescribed for short durations “as needed.” (Pl. 56.1 ¶ 46.) V. Plaintiff's Treatment After Leaving NCCC In June 2015, Plaintiff was transferred to Franklin Correctional Facility (“Franklin”). (Defs. 56.1 ¶ 13; Pl. 56.1 Opp. ¶ 13.) While at Franklin, Plaintiff was prescribed Ultram and Neurontin and later Percocet and/or Oxycodone for pain management, as well as Wellbutrin and Zoloft for his mental health. (Defs. 56.1 ¶ 14; Pl. 56.1 Opp. ¶ 14.) Plaintiff was later transferred to Mid-State Correctional Facility (“Mid-State”) and then to Marcy Correctional Facility (“Marcy”). (Defs. 56.1 ¶¶ 15, 18; Pl. 56.1 Opp. ¶¶ 15, 18.) He was not given pain medication at either facility, pursuant to a newly instituted New York State policy that disallowed giving pain medication to inmates. (Defs. 56.1 ¶¶ 15, 18; Pl. 56.1 Opp. ¶¶ 15, 18.) Despite his pain levels being the same at these facilities as they were at NCC and Franklin, Plaintiff was “able to survive” without pain medication. (Pl. Tr. 66:4–16; see Defs. 56.1 ¶ 20; Pl. 56.1 Opp. ¶ 20.) VI. The Parties’ Expert Witness Reports A. Expert Reports Regarding Plaintiff's Mental Health Treatment Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 51 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 Dr. Nathaniel Mendelsohn, a psychiatrist, produced a report on behalf of Plaintiff on September 17, 2021. (Mendelsohn Report.) Based on a review of the relevant records and a psychiatric evaluation of Plaintiff, he concluded that Dr. Manetti was “grossly negligent” in his psychiatric treatment of Plaintiff. (Defs. 56.1 ¶ 63; Pl. 56.1 Opp. ¶ 63.) Dr. Mendelsohn stated that because the anxiety medication nortriptyline was not a controlled substance, Plaintiff's substance dependence history did not preclude Dr. Manetti from prescribing it for him. (Mendelsohn Report at 12.) He also concluded that Dr. Manetti did not conduct the necessary diagnostic tests to support the conclusion that Plaintiff might have been malingering (id. at 11–12), and that Dr. Manetti deviated from the standard of care in failing “to gather as much information as possible on the psychiatric care and treatment rendered to [Plaintiff] prior to his arrival at Nassau County,” given that Plaintiff provided “a history that he had prior psychiatric treatment and had been placed on medication” (id. at 11). Dr. Mendelsohn concluded that, as a result of Dr. Manetti's deviation from “standard, customary and ordinary psychiatric treatment,” Plaintiff suffered “extensive mental anguish and suffering.” (Id. at 13.) *7 Defendants’ expert Dr. Robert Goldstein, a psychiatrist and professor of psychiatry, produced a report on November 17, 2021. (“Goldstein Report,” Ex. I to McLaren Decl., Dkt. 109-9; Defs. 56.1 ¶ 64.) Based on his review of the relevant records, Dr. Goldstein concluded that Dr. Manetti and Armor's psychiatric care and treatment of Plaintiff “met the standard of care.” (Defs. 56.1 ¶ 64; Goldstein Report at 14.) B. Expert Reports Regarding Plaintiff's Pain Management Treatment Dr. Ryan Herrington produced a report on behalf of Plaintiff on April 26, 2021. (“Herrington Report,” Ex. G to Brewington Decl., Dkt. 109-24.) Dr. Herrington is a primary care physician and has worked as a correctional facility medical director. (Defs. 56.1 ¶ 61; Pl. 56.1 Opp. ¶ 61.) After reviewing Plaintiff's NUMC and Armor records, Herrington concluded that Defendants “failed to provide continuity in managing [Plaintiff's] chronic pain, failed to send him for outside consultations for pain management and failed to provide adequate pain medication.” (Defs. 56.1 ¶ 61; Pl. 56.1 Opp. ¶ 61.) 11 He further concluded that Defendants’ pain management strategy for Plaintiff was “shockingly short of reasonable expectation”; that Defendants should have had a chronic pain clinic, “failed to carry out provider generated referrals,” to ensure continuity of treatment, and to diligently continue any pain medication already being prescribed to Plaintiff; and that Defendants’ “negligent and deliberately indifferent” treatment caused Plaintiff “undue and unnecessary additional pain and suffering.” (Herrington Report at 12–13; see Defs. 56.1 ¶ 62; Pl. 56.1 Opp. ¶ 62.) On September 21, 2021, Dr. Herrington filed an addendum to his report, in which he found that Plaintiff was incarcerated in a “disease amenable” environment and that Armor's practice was “not only grossly negligent and a clear departure from good and acceptable correctional medical practice but [was] furthermore deliberately indifferent to [Plaintiff's] serious medical needs.” (“Herrington Addendum” at 5, Ex. I to Brewington Decl., Dkt. 109-27.) Defendants’ expert Dr. David Mathis, a family doctor and certified correctional healthcare professional, produced a report finding that Ms. Brady would not have been qualified to discontinue Plaintiff's medication. (Defs. 56.1 ¶ 64; Pl. 56.1 Opp. ¶ 64.) Because Dr. Mathis found no evidence that she had discontinued Plaintiff's medication, he concluded that Ms. Brady had not violated any standard of care. (Defs. 56.1 ¶ 64; Pl. 56.1 Opp. ¶ 64.) With regard to the pain treatment provided to Plaintiff by Armor, Dr. Mathis opined that Plaintiff showed no objective need for pain medication in light of the results of his CT scan. (Defs. 56.1 ¶ 65; Pl. 56.1 Opp. ¶ 65.) He found that there was no need to send Plaintiff to an orthopedist because Plaintiff stated he did not need surgery for his neck and that there was no evidence that Plaintiff's daily activities were diminished as a result of his pain. (Defs. 56.1 ¶ 65; Pl. 56.1 Opp. ¶ 65.) PROCEDURAL BACKGROUND On February 2, 2015, Plaintiff, acting pro se, filed the Complaint asserting claims under 42 U.S.C. § 1983 against “Dr. Vincent Manetti of Armor Health, Nurse Brady of Armor Health, Sheriff Sposato of Nassau County Correctional Center and His Employees Janes and John Doe, etc. et al.” (Compl. at 1, 3.) Plaintiff handwrote and signed the Complaint (id. at 15), but he did not do so under penalty of perjury (but see id. at 5). *8 All defendants filed a Motion to Dismiss. (Dkt. 14.) On February 24, 2016, the Honorable Joseph F. Bianco denied the Motion to Dismiss as to Plaintiff's claims against Ms. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 52 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 Brady, Dr. Manetti, and Armor, 12 and granted it as to all other defendants. 13 Donohue v. Manetti, No. 15-CV-636 (JFB) (GRB), 2016 WL 740439 (E.D.N.Y. Feb. 24, 2016); (see “Order on Mot. to Dismiss,” Dkt. 25). Plaintiff's motion to appoint counsel (Dkt. 48) was granted, and pro bono counsel appeared on behalf of Plaintiff on June 26, 2017 (Dkt. 49). On November 13, 2018, Plaintiff informed the Court that he had retained counsel, who entered an appearance on December 20, 2018. (Dkt. 56.) On November 25, 2019, the parties stipulated to amend the case caption to its current form. (Dkt. 69.) The parties have consented to magistrate judge jurisdiction. (Dkt. 71.) *9 Defendants never filed an answer, 14 but the parties nevertheless conducted discovery, which was completed on February 22, 2022. (See Feb. 17, 2021 Min. Entry; Dkt. 101.) Defendants’ Motion for Summary Judgment was fully briefed on August 6, 2022, seeking dismissal of Plaintiff's Section 1983 deliberate indifference claims against Dr. Manetti, Ms. Brady, and Armor. Oral argument was held on March 1, 2023, after which the parties filed supplemental briefings at the Court's request. A further oral argument was held on March 21, 2025, and Plaintiff was granted leave to supplement his briefings on the limited issue of Ms. Brady's alleged statements (Mar. 21, 2025 Min. Entry), which he did on March 27, 2025 (Pl. Ltr., Dkt. 130). DISCUSSION Defendants contend that the claims should be dismissed because Plaintiff failed to exhaust administrative remedies under the Prison Litigation Reform Act of 1995 (“PLRA”), and because there is no genuine dispute as to any material fact on any of the claims. I. Plaintiff's Failure to Exhaust Administrative Remedies Defendants argue that the case should be dismissed because Plaintiff failed to comply with the Prison Litigation Reform Act of 1995 (“PLRA”), which requires that an inmate exhaust all administrative remedies before filing an action regarding prison conditions under Section 1983 or any other federal law. 42 U.S.C. § 1997e(a). “There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). However, failure to exhaust is an affirmative defense. Id. at 216 (“We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints.”). Federal Rule of Civil Procedure 8(c) requires that “[i]n responding to a pleading, a party must affirmatively state any ... affirmative defense....” “Ordinarily in civil litigation, [an affirmative defense] is forfeited if not raised in a defendant's answer or in an amendment thereto. An affirmative defense, once forfeited, is excluded from the case.” Wood v. Milyard, 566 U.S. 463, 470 (2012) (citations omitted); see also Satchell v. Dilworth, 745 F.2d 781, 784 (2d Cir. 1984) (“Failure to plead an affirmative defense in the answer results in the waiver of that defense and its exclusion from the case.” (internal quotation omitted)). Such a rule “is intended to notify a party of the existence of certain issues,” and “a party's failure to plead an affirmative defense bars its invocation at later stages of the litigation.” Doubleday & Co. v. Curtis, 763 F.2d 495, 503 (2d Cir. 1985). The Second Circuit has held that the defense of failure to exhaust available administrative remedies is an affirmative defense that is waivable, specifically under the PLRA. Johnson v. Testman, 380 F.3d 691, 695 (2nd Cir. 2004). It is especially appropriate to consider the defense waived where the defendants had “information that was available to them prior to any discovery taking place” and failed to raise the issue earlier or represented that prison grievance procedures were not available. Handberry v. Thompson, 446 F.3d 335, 342 (2d Cir. 2006). *10 However, even “[i]f a defendant omits an affirmative defense from his answer or first responsive pleading, a district court may nevertheless decline to deem the defense waived if the plaintiff had notice and an opportunity to respond.” Arciello v. County of Nassau, No. 16-CV-3974 (ADS)(SIL), 2019 WL 4575145, at *4 (E.D.N.Y. September 20, 2019). “[T]he law is clear that, in the absence of prejudice, a defendant may raise an affirmative defense in a motion for summary judgment for the first time.” Id. (citation omitted); see also Astor Holdings, Inc. v. Roski, 325 F. Supp. 2d 251, 260 (S.D.N.Y. 2003) (the Court may consider the merits of an affirmative defense “raised for the first time at the summary judgment stage, so long as the plaintiff has had an opportunity to respond” (citing Curry v. City of Syracuse, 316 Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 53 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 F.3d 324, 330-31 (2d Cir. 2003))); Wilkins v. Specialized Loan Servicing, LLC, No. 20-CV-543, 2022 WL 3593154, at *1-2 (S.D.N.Y. August 23, 2022) (same). Waiver of an affirmative defense “may not be proper where the defense is raised at the first pragmatically possible time and applying it at that time would not unfairly prejudice the opposing party.” Am. Fed. Grp., Ltd. v. Rothenberg, 136 F.3d 897, 910 (2d Cir. 1998). Because permitting a defendant to raise an affirmative defense for the first time in a summary judgment motion is tantamount to granting it leave to amend its answer, courts also consider factors underlying a request for leave to amend an answer under Federal Rule of Civil Procedure 15. See S&L Vitamins, Inc. v. Australian Gold, Inc., 521 F. Supp. 2d 188, 213 (E.D.N.Y. 2007) (citing Block v. First Blood Assocs., 988 F.2d 344, 349–351 (2d Cir. 1993) 15 ). Applying the factors for whether to permit amendment of an answer, a district court has discretion to deny a defendant leave to amend its answer “ ‘where the motion is made after an inordinate delay, no satisfactory explanation is made for the delay, and the amendment would prejudice the defendant.’ ” Levy v. Kosher Overseers Assn. of Am., Inc., No. 92-CV-8377 (DLC), 2000 WL 294842, at *6 (S.D.N.Y. Mar. 21, 2000) (quoting MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 157 F.3d 956, 962 (2d Cir. 1998)). Defendants never filed an answer to the Complaint and, thus, did not raise any affirmative defenses, including the argument raised here that Plaintiff failed to exhaust his administrative remedies under the PLRA. They also did not raise this issue as a basis for dismissing the Complaint when they filed their Motion to Dismiss on May 14, 2015. Copies of the grievances submitted by Plaintiff on November 30, 2014 and December 17, 2014 were attached to the Complaint. From these documents and their own records, Defendants could have ascertained, without the need for discovery, whether Plaintiff had exhausted his administrative remedies. By not pointing out Plaintiff's procedural defect until more than seven and one-half years after the Complaint was filed and after discovery has been completed, Defendants have failed to raise at the “first pragmatically possible time” the issue of Plaintiff's failure to exhaust administrative remedies. Arciello, 2019 WL 4575145, at *5. Plaintiff was released from NCCC on June 18, 2015 and from custody on February 27, 2019. (Pl. Tr. 7:2–9; 28:3–4.) Had Defendants raised the affirmative defense of Plaintiff's failure to exhaust administrative remedies earlier, he may have had the opportunity to remedy it and possibly refile his claim. Because the three-year statute of limitations for Plaintiff's Section 1983 claims has long passed, see, e.g., Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997) (“New York's three- year statute of limitations ... governs Section 1983 actions in New York ...”), the excessive delay has prejudiced Plaintiff. *11 Defendants offer no satisfactory explanation for their delay in raising this defense, stating only that Judge Bianco granted Plaintiff leave to file an amended complaint within thirty days and that Plaintiff failed to do so. (Def. Mem. at 3.) Plaintiff's failure to file an amended complaint against defendants Sposato, John Doe and Jane Doe does not excuse Defendants’ failure to file an answer to the remaining claims in the Complaint, nor does it explain why Defendants did not raise this affirmative defense in their motion to dismiss or any subsequent proceedings in the intervening seven years. Accordingly, I find that Defendants have waived their ability to raise for the first time in the Motion the affirmative defense of failure to exhaust administrative remedies. See Learning Care Group, Inc. v. Armetta, 13-CV-1540 (VAB), 2016 WL 3248178, at *8 (D. Conn. June 12, 2016) (finding that defendants waived their affirmative defenses by failing to file an answer and failing to raise them in their motion to dismiss). 16 II. Summary Judgment as to Deliberate Indifference A. Summary Judgment Legal Standard Federal Rule of Civil Procedure 56 governs motions for summary judgment. Rule 56(a) states: A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 54 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 Fed. R. Civ. P. 56(a). “In ruling on a summary judgment motion, the district court must ‘resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment’ and determine whether there is a genuine dispute as to a material fact, raising an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (citation omitted) (quoting Kessler v. Westchester Cnty. Dep't of Soc. Servs., 461 F.3d 199, 206 (2d Cir. 2006)). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247–48 (emphasis in original). A “dispute about a material fact is ‘genuine,’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. Allegations in a complaint that are contradicted by a later deposition cannot create a triable issue of fact. See, e.g., Taylor v. Ridley, 904 F. Supp. 2d 222, 232 (E.D.N.Y. 2012) (collecting cases and granting summary judgment where allegations in complaint were “unexpectedly inconsistent and contradictory with his testimony ... at his deposition ... and are uncorroborated by any independent evidence in the record.”); AB ex rel. EF v. Rhinebeck Cent. Sch. Dist., 361 F. Supp. 2d 312, 316 (S.D.N.Y. 2005) (“[J]ust as the court should not accept an affidavit that contradicts deposition testimony, it should also not allow inconsistent allegations made in a complaint to defeat summary judgment in the face of contradictory testimony either.”). *12 “It is the movant's burden to show that no genuine factual dispute exists....” Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003). Once the movant satisfies its burden, the party opposing summary judgment “must point to specific evidence in the record” demonstrating a genuine issue for trial and “cannot rest on allegations in the pleadings.” Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)), abrogated in part on other grounds by Kravitz v. Purcell, 87 F.4th 111, 119, 122 (2d Cir. 2023). “A verified complaint is to be treated as an affidavit for summary judgment purposes, and therefore will be considered in determining whether material issues of fact exist, provided that it meets the other requirements for an affidavit under Rule 56(e).” Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). B. Section 1983 Legal Standard – Deliberate Indifference “Section 1983 does not itself create substantive rights; rather, it offers ‘a method for vindicating federal rights elsewhere conferred.’ ” Donohue, 2016 WL 740439, at *3 (quoting Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004)). “To prevail on a claim under Section 1983, a plaintiff must show: (1) the deprivation of any rights, privileges, or immunities secured by the Constitution and its laws, (2) by a person acting under the color of state law.” Id. (quoting 42 U.S.C. § 1983). Plaintiff brings claims under 42 U.S.C. § 1983 for violations of his rights under the Eighth and Fourteenth Amendments. “The Eighth Amendment forbids deliberate indifference to serious medical needs of prisoners.” Donohue, 2016 WL 740439, at * 6 (quoting Spavone v. N.Y. State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013) (citations omitted)). “Because Plaintiff was a pre-trial detainee, the Fourteenth Amendment supplies the relevant legal standard,” which applies to Plaintiff's deliberate indifference claims. Yancey v. Robertson, 828 F. App'x 801, 803 (2d Cir. 2020) (summary order) (citing Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)). In order to succeed on a claim of deliberate indifference to serious medical needs, a plaintiff must establish both an objective prong and a mens rea prong. 17 Darnell, 849 F.3d at 29; see Donohue, 2016 WL 740439, at *6. 1. Objective Component “For both the Eighth and Fourteenth Amendments, the objective prong poses the same standard,” Horace v. Gibbs, 802 F. App'x 11, 14 (2d Cir. 2020) (summary order) (citing Darnell, 849 F.3d at 32), requiring that “the alleged deprivation of adequate medical care ... be ‘sufficiently serious.’ ” Salahuddin, 467 F.3d at 279 (internal quotation omitted). To establish this component, “the inmate [must] show that he was actually deprived of adequate medical care by an official's failure to take reasonable measures in response to a sufficiently serious medical condition.” Thomas v. Wolf, 832 F. App'x 90, 92 (2d Cir. 2020) (summary order) (cleaned up). Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 55 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 There are two inquiries within this analysis. The first is “whether the prisoner was actually deprived of adequate medical care.” Donohue, 2016 WL 740439, at *6 (quoting Salahuddin, 467 F.3d at 279–80). “As the Supreme Court has noted, the prison official's duty is only to provide reasonable care.” Salahuddin, 467 F.3d at 279. The second is “whether the inadequacy in medical care is sufficiently serious ... [which] requires the court to examine how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner.” Id. at 279–80. *13 “[I]f the unreasonable medical care is a failure to provide any treatment for an inmate's medical condition, courts examine whether the inmate's medical condition is sufficiently serious.” Id. at 280. Factors to consider when evaluating the seriousness of an inmate's medical condition include, but are not limited to, “(1) whether a reasonable doctor or patient would perceive the medical need in question as important and worthy of comment or treatment, (2) whether the medical condition significantly affects daily activities, and (3) the existence of chronic and substantial pain.” Donohue, 2016 WL 740439, at *6 (quoting Morales v. Fischer, 46 F. Supp. 3d 239, 247 (W.D.N.Y. 2014) (citation omitted)). If “the inadequacy is in the medical treatment given, the seriousness inquiry is narrower. For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in that treatment, the seriousness inquiry ‘focus[es] on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone.’ ” Salahuddin, 467 F.3d at 280 (quoting Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)). “For a constitutional violation to occur based on deliberate indifference to a prisoner's medical need, the deprivation of medical care must be ‘sufficiently serious’ in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists.” Yancey, 828 F. App'x at 803 (cleaned up and quotation omitted). 2. Mens Rea Component The mens rea prong requires that the defendant acted with a “sufficiently culpable state of mind.” Salhuddin, 467 F.3d at 280. “A detainee must prove that an official acted intentionally or recklessly, and not merely negligently.” Darnell, 849 F.3d at 36; see, e.g., Adamson v. Miller, 808 F. App'x 14, 18 (2d Cir. 2020) (summary order); Dumel v. Westchester Cnty., 656 F. Supp. 3d 454, 465 (S.D.N.Y. 2023). The plaintiff must demonstrate that “the defendants knew that failing to provide the complained of medical treatment would pose a substantial risk to [the detainee's] health or that the defendants should have known that failing to provide the omitted medical treatment would pose a substantial risk to the detainee's health.” Darby v. Greenman, 14 F.4th 124, 128 (2d Cir. 2021) (emphasis in original) (quoting Charles v. Orange County, 925 F.3d 73, 87 (2d Cir. 2019)); see also Horace, 802 F. App'x at 14; Shakir v. Stankye, 805 F. App'x 35, 40 (2d Cir. 2020) (summary order). “Courts must be careful,” however, “to not consider departure from the accepted standard of medical care,” or medical malpractice, “as serious indifference.” Jones v. Sheriff of Suffolk Cnty., 518 F. Supp. 3d 650, 657 (E.D.N.Y. 2021). “ ‘[M]ere disagreement over the proper treatment does not create a constitutional claim,’ and accordingly, ‘[s]o long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation.” Donohue, 2016 WL 740439, at *7 (alteration in original) (quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)); see also Laurent v. Edwin, 528 F. Supp. 3d 69, 87 (E.D.N.Y. 2021). Nonetheless, “judgments that have no sound medical basis, contravene professional norms, and appear designed simply to justify an easier course of treatment ... may provide the basis of a claim.” Ryan v. Cnty. of Nassau, No. 12-CV-5343 (JS)(SIL), 2016 WL 11500151, at *7 (E.D.N.Y. Mar. 31, 2016) (alteration in original and citation omitted); see also Laurent, 528 F. Supp. 3d at 87 (“In certain instances, a physician may be deliberately indifferent if he or she consciously chooses an easier and less efficacious treatment plan, as evident when treatment recommendations are not derived from sound medical judgment, but ulterior motives.” (cleaned up and citation omitted)). *14 To establish individual liability under Section 1983, a plaintiff must also “establish a given defendant's personal involvement in the claimed violation in order to hold that defendant liable in his individual capacity under § 1983.” Patterson, 375 F.3d at 229. C. Defendant Manetti Plaintiff argues that Dr. Manetti's failure to provide him with any mental health medication—despite Plaintiff's history Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 56 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 of anxiety, depression, and panic attacks and a 20-year history of taking mental health medication—along with his failure to verify the medications that he had been taking, constitutes deliberate indifference in violation of his Eighth and Fourteenth Amendment rights. (See Pl. Mem. at 9–19.) Dr. Manetti's personal involvement in the alleged violations is not disputed. Rather, Defendants argue that Plaintiff fails to present evidence in support of his allegations of deliberate indifference or inadequate medical treatment. (Def. Mem. at 2.) 1. Objective Component “Courts have repeatedly held that treatment of a psychiatric or psychological condition may present a serious medical need.” Hamm v. Hatcher, No. 05-CV-0503 (ER), 2013 WL 71770, at *8 (S.D.N.Y. Jan. 7, 2013) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000)). Plaintiff reports having severe anxiety, depression, and panic attacks and having been prescribed medication to treat those conditions for twenty years. In addition to Plaintiff's testimony, Plaintiff's NUMC medical records, Armor Health Assessment, and Armor Mental Health Screening reveal that he reported a history of these ailments when he was taken into custody. Dr. Marcos was also able to confirm that Plaintiff was previously taking nortriptyline before being incarcerated at NCCC. “[T]he fact that [the plaintiff] was previously treated for a psychiatric condition with medication would clearly indicate that his condition was serious.” Colon, 2014 WL 4904692, at *7; see, e.g., Jones v. Rock, No. 12-CV-447 (NAM)(TWD), 2013 WL 4804500, at *15 (N.D.N.Y. Sept. 6, 2013) (finding that plaintiff's allegations of mood disorder for which he had taken medication and that he had attempted suicide plausibly established that his mental health problems were “serious”). Plaintiff's history of mental health conditions, combined with his suicidal ideations and attempted suicide while at NCCC, indicate that his mental health needs were sufficiently serious. See, e.g., Young v. Choinski, 15 F. Supp. 3d 172, 184 (D. Conn. 2014) (“[C]ase law within this Circuit recognizes that ‘depression combined with severe anxiety attacks or suicide attempts is a serious medical need’ in the context of deliberate indifference.” (quoting Zimmerman v. Burge, No. 06-CV-0176 (GLS)(GHL), 2009 WL 3111429, at *8 (N.D.N.Y. Sept. 24, 2009))). There is also evidence that Plaintiff's anxiety and depression affected his daily life. Plaintiff asserts that he experienced panic attacks, could not eat or sleep, and felt anxious and depressed. (See, e.g., Pl. 56.1 Opp. ¶ 64 (citing Mendelsohn Report).) His conditions and complaints are documented in many of the mental health rounds notes. (See generally Exs. C-1 through C-4 to Brewington Decl., Dkts. 108-3 through 6.) Plaintiff also states that he attempted suicide in December 2014. (See Pl. 56.1 Opp. ¶ 64 (citing Mendelsohn Report).) *15 Whether Dr. Manetti acted reasonably in choosing not to provide Plaintiff with medication for his depression and anxiety “is a more difficult question, which cannot be resolved as a matter of law.” See Ryan, 2016 WL 11500151, at *6. The parties have submitted conflicting expert reports. Dr. Mendelsohn concluded that Dr. Manetti “deviated from standard, customary, and ordinary care” in discontinuing his psychiatric medication given that Plaintiff had an active prescription for the medication when he arrived at NCCC and exhibited signs of depression and anxiety throughout his incarceration. (Mendelsohn Report at 11–12.) Additionally, Dr. Mendelsohn found that because nortriptyline, which Plaintiff was briefly given by Dr. Marcos, is not a controlled substance, Dr. Manetti's alleged concern about Plaintiff's substance dependence would not have precluded him from prescribing it. (Id. at 12.) Finally, he stated that Dr. Manetti did not conduct the necessary diagnostic tests to support his conclusion that Plaintiff might be malingering. (Id. at 11.) From Dr. Mendelsohn's findings, a reasonable juror could find that the lack of treatment Plaintiff experienced was “sufficiently serious.” See, e.g., Ryan, 2016 WL 11500151, at *6 (finding expert opinion that psychiatrist breached standard of care by delaying plaintiff's psychological evaluation, discontinuing his psychotropic medication, and failing to keep him under constant supervision created factual questions as to whether psychiatrist had acted reasonably that could not be resolved on summary judgment). 2. Mens Rea Component There are also genuine disputes of material fact as to whether Dr. Manetti had a sufficiently culpable state of mind when he failed to prescribe Plaintiff mental health medication. Dr. Manetti testified that he could not recall whether Plaintiff informed him of his history of anxiety, depression, and panic attacks. He testified that the record he reviewed Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 57 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 before meeting with Plaintiff “indicated that he was not on medications prior to coming to the jail.” (Manetti Tr. 58:22– 59:17; 60:3–16.) Plaintiff is not required to establish that Dr. Manetti actually knew that without medication, Plaintiff was at risk of serious medical conditions; it is enough that Dr. Manetti should have known that failing to provide him with medication would pose a substantial risk to his health. See, e.g., Darby, 14 F.4th at 128. The evidence in the record is such that a reasonable juror could find that Dr. Manetti either knew or should have known that Plaintiff was at risk of serious harm without medication to treat his psychological conditions. While the Sherriff's Department “New Admission Physical Condition Report” completed on September 19, 2014 states that Plaintiff did not have any illnesses and was not currently taking any medication, the NUMC records, Armor Health Assessment, and Armor Mental Health Screening records indicate that Plaintiff reported a history of anxiety and depression. Some of these records also reveal that Plaintiff had been hospitalized twice for anxiety and depression and that he had previously taken Klonopin and nortriptyline. (See Ex. C to Brewington Decl. at 8.) NCCC officials also made the decision to admit Plaintiff to the medical floor where he was placed in a psychiatric cell. (Defs. 56.1 ¶ 10; Pl. 56.1 Opp. ¶ 10.) A jury could find that Dr. Manetti either reviewed, or should have reviewed, these records and was thus aware of Plaintiff's mental health conditions and medication history. Moreover, Dr. Manetti was aware that Plaintiff was experiencing suicidal thoughts at least at the time of their first meeting, where he recommended that Plaintiff continue to be placed under constant supervision. Plaintiff's “Mental Health Rounds Progress Note” from the same day states that Plaintiff felt very depressed. (Ex. C-1 to Brewington Decl. at 13.) Additionally, daily mental health rounds notes indicate that Plaintiff repeatedly informed social workers that he was depressed, anxious, and wanted to speak with Dr. Manetti. (See Mendelsohn Report at 6–8.) *16 There is also a genuine dispute as to the reason Dr. Manetti chose not to prescribe Plaintiff medication. Plaintiff's treatment records show that at the time of his evaluation, Dr. Manetti wrote down that Plaintiff had demanded benzodiazepines “because [he was] in jail,” and Dr. Manetti believed that Plaintiff might be malingering. (See Defs. 56.1 ¶¶ 40–45.) Dr. Manetti also testified that he did not believe that prescribing controlled substances to someone with a history of substance dependence was medically advisable. (Manetti Tr. 56:2–5, 71:7–12.) Finally, Dr. Manetti stated that he wanted to confirm Plaintiff's prior prescriptions, if any, before prescribing medication to Plaintiff. (Id. 147:21–148:12.) Plaintiff asserts that Dr. Manetti stated that he was not prescribing medication to Plaintiff because it was Armor's policy not to provide pills to inmates. Although Plaintiff's sworn deposition testimony is the only evidence of Dr. Manetti's statement regarding an Armor policy, “[a] single witness's sworn testimony, if believed by a jury, can support a verdict, and is enough to raise a genuine issue of fact precluding summary judgment.” Bradshaw v. City of N.Y., 855 F. App'x 6, 9 (2d Cir. 2021) (summary order); see also Young, 15 F. Supp. 3d at 185 (collecting cases and finding that plaintiff's sworn complaint and deposition testimony constituted evidence sufficient to consider for summary judgment purposes). There is no documentary evidence that directly contradicts Plaintiff's testimony, and it is not for the Court to determine whether Plaintiff's account is credible. See, e.g., Scott v. Coughlin, 344 F.3d 282, 289–90 (2d Cir. 2003) (“By finding against [plaintiff] on the basis of the disparity between some of [plaintiff's] medical records and statements in his affidavit, the district court made an impermissible credibility determination and weighed contradictory proof. The credibility of [plaintiff's] statements and the weight of contradictory evidence may only be evaluated by a finder of fact.”); but see, e.g., Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (ruling against plaintiff whose excessive force case relied “almost exclusively on his own testimony, much of which is contradictory and incomplete” and noting that “the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.... [Non-moving parties] may not rely on conclusory allegations or unsubstantiated speculation.... At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful.” (cleaned up and internal quotations omitted)). If a jury finds credible Plaintiff's testimony that Dr. Manetti chose not to prescribe Plaintiff medication because of his reliance on a purported Armor policy, a jury could find that that he acted with deliberate indifference. See, e.g., Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005) (finding that whether Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 58 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 defendants acted with deliberate indifference to plaintiff's medical needs by refusing to prescribe him Hepatitis C medication due to a Department of Corrections policy was a question of fact to be determined by the jury); Colon, 2014 WL 4904692, at *7 (finding that denial of psychiatric medication based on Armor's budget rather than medical need could establish mens rea prong of deliberate indifference claim); Ryan, 2016 WL 11500151, at *7. Additionally, whether Dr. Manetti acted recklessly by failing to make additional efforts to obtain Plaintiff's prior treatment records is at issue. In his expert report, Dr. Mendelsohn stated that “[t]he standard of care would have been to gather as much information as possible on the psychiatric care and treatment rendered to [Plaintiff] prior to his arrival at Nassau County,” and that “Dr. Manetti should have made an earnest effort to obtain past metal health records from Fishkill knowing [Plaintiff] gave him a history that he had prior psychiatric treatment and had been placed on medication.” (Mendelsohn Report at 11.) *17 Given that, according to Plaintiff, Dr. Manetti failed make any such effort, a jury could find that he acted with deliberate indifference to Plaintiff's serious medical needs. See, e.g., Wright, 412 F.3d at 404 (finding that a jury could find that defendants knew and disregarded an excessive risk to plaintiff's health based on evidence that included, inter alia, defendants’ failure to take “any step whatsoever to investigate—let alone verify—whether it would be medically appropriate” to decline to prescribe plaintiff medication despite his treating physicians’ advice to the contrary). Finally, the fact that Dr. Marcos prescribed Plaintiff nortriptyline at NCCC despite his history of substance dependance could lead a reasonable jury to conclude that Dr. Manetti's rationale for not prescribing the medication was pretextual. Id. at 405–06 (finding the fact that plaintiff's physicians recommended that he be given medication despite concerns about his compliance undercut defendants’ argument that they were justified in not giving plaintiff the medication due to compliance concerns); but see, e.g., Laurent, 528 F. Supp. 3d at 88 (collecting cases establishing that deliberate indifference is not met simply because one doctor's treatment plan for an inmate differs from that of another doctor). There are genuine disputes of material fact as to whether Dr. Manetti was deliberately indifferent to Plaintiff's serious medical needs. Accordingly, summary judgment on Plaintiff's claims against Dr. Manetti is denied. D. Defendant Brady Plaintiff asserts that Ms. Brady unilaterally discontinued his Ultram pain medication and gave him an NSAID, which Ms. Brady knew or should have known he was allergic to. Plaintiff also alleges that Ms. Brady told him “I was hoping you would have died” when he reported that he had an allergic reaction to medication that she had administered to him. Plaintiff argues that Ms. Brady's unilateral discontinuation of his Ultram prescription on December 17, 2014 and provision of an NSAID, to which he is allergic, violate his Eighth and Fourteenth Amendment rights. Defendants contend that Ms. Brady did not have the authority to order or discontinue Plaintiff's medication, and, therefore, cannot be held liable for deliberate indifference under § 1983. (Def. Mem. at 21–22.) 1. Discontinuation of Ultram Plaintiff contends that Ms. Brady deprived him of adequate medical care by discontinuing Ultram, which, to establish deliberate indifference, must be sufficiently serious and caused by an official's failure to take reasonable measures in response to a medical condition. Salahuddin, 467 F.3d at 279; Thomas, 832 F. App'x at 92. Here, “ ‘sufficiently serious’ means a condition of urgency exists that may produce death, degeneration, or extreme pain.” Yancey, 828 F. App'x at 803 (quotation omitted). Plaintiff's Ultram prescription was discontinued on December 17, 2014 and reinstated on December 30, 2014. (See Herrington Report at 4; Brady Tr. 93:20–94:11; Ex. C-1 to Brewington Decl. at 2; Ex. C-5 to Brewington Decl. at 29.) During the time that Plaintiff was without Ultram, he made four sick call requests. Plaintiff wrote on December 18, 2014, “I am in constant extreme pain!”; on December 19, he wrote, “I am in extreme pain!”; on December 25, he wrote, “I am in constant extreme pain!”; and on December 29, he wrote, “severe pain I am in every day!” (Ex. J-1 at 21–24.) Given that Plaintiff alleges a disruption in treatment rather than a total denial of pain medication, the medical Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 59 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 consequences of the disruption must be considered. See, e.g., Davis v. McCready, 283 F. Supp. 3d 108, 120 (S.D.N.Y. 2017) (“In evaluating whether a delay in treatment is sufficiently serious, ‘the actual medical consequences that flow from the alleged denial of care will be highly relevant.’ ” (quoting Carpenter, 316 F.3d at 187)); Snyder v. Alam, No. 15- CV-4033 (VB), 2016 WL 2642226, at *4 (S.D.N.Y. May 6, 2016) (considering only injuries that were a result of delay in medical treatment where plaintiff claimed that the delay constituted deliberate indifference to his serious medical needs). *18 Plaintiff does not allege that his condition worsened either temporarily or permanently due to Ultram being discontinued. His complaints of serious pain were fairly consistent before, during, and after the period between December 17, 2014 and December 30, 2014 when Ultram was discontinued. (See supra n. 10 (listing Plaintiff's complaints of pain between September 2014 and March 2015).) Indeed, Plaintiff complained of similarly severe pain for months beforehand and even up to just five days before Ultram was discontinued. Plaintiff has not shown how any pain he experienced was caused by being deprived of Ultram. “As a threshold matter, the mere fact that plaintiff's underlying [condition] is a serious medical condition does not mean that the allegedly incorrect treatment for that condition poses an objectively serious health risk.” Price v. Reilly, 697 F. Supp. 2d 344, 359 (E.D.N.Y. 2010). Plaintiff has failed to produce any evidence that ceasing Ultram caused or will cause him any objective harm. See id. (finding that a plaintiff's medication dosage claim failed because the plaintiff only alleged that an allegedly incorrect dosage was “wrong” and was “hurting” him). Taking Plaintiff's assertions as true, Plaintiff suffered from severe pain, but there is no indication that his symptoms worsened to any cognizable degree after December 17, 2014, when Ultram was discontinued. See, e.g., Jones v. Sheriff of Suffolk Cnty., 518 F. Supp. 3d 650, 658 (E.D.N.Y. 2021) (finding that brief delay in administration of pain medication that “caused plaintiff some degree of pain or discomfort” would “not [be] constitutionally deficient where plaintiff suffered neither death nor degeneration of his condition”). Therefore, there is no evidence that the denial of Ultram from December 17 to 30, 2014 significantly impacted Plaintiff's pain such that a reasonable jury could find that his condition was sufficiently serious. Moreover, Ms. Brady's duty in this context is to provide reasonable care. Salahuddin, 467 F.3d at 279. While Plaintiff's expert has opined that Defendants generally failed to ensure Plaintiff's continuity of treatment (Herrington Report at 14), it is not clear that Ms. Brady's purported act of discontinuing Plaintiff's Ultram was unreasonable per se, nor is it clear why Ms. Brady should be held individually liable for this alleged general failure in continuity. Plaintiff's Ultram was discontinued or reduced on other occasions as well, including on various dates in November 2014, from February 1 to February 5, 2015, and from March 23, 2015 to April 10, 2015. (Herrington Report at 4–5, 7–8; Ex. C-4 to Brewington Decl. at 3; Pl. 56.1 ¶ 44.) Plaintiff does not allege that he experienced any significant, unusual pain or medical setbacks on those occasions. Plaintiff also does not elucidate why adjusting his dosage of Ultram or eliminating it was unreasonable. The parties dispute whether Ms. Brady could have discontinued Ultram unilaterally, because, as an LPN, she was not authorized to do so. (See Brady Tr. 169:18–170:24.) But ultimately, that issue is not relevant. Because Plaintiff has not demonstrated that the discontinuance of Ultram constituted a sufficiently serious deprivation of medical care, summary judgment is granted as to Plaintiff's claim against Ms. Brady related to her denial of medication. 2. Provision of NSAIDs a. Objective Component Plaintiff contends that Ms. Brady acted with deliberate indifference to his serious medical needs by giving him an NSAID, which caused him to suffer a severe allergic reaction. (Pl. Mem. at 10–12.) Plaintiff testified that, after taking the ibuprofen that Ms. Brady had administered to him, his heart began racing, his throat closed such that he could not breathe, and he passed out. (Pl. Tr. 95:3–7.) The allergic reaction is not documented in Plaintiff's medical records. *19 Giving Plaintiff an NSAID despite his medical record reflecting that he was allergic to NSAIDs could constitute a deprivation of adequate medical care, but Plaintiff must still demonstrate that the deprivation was sufficiently serious. In Yancey v. Robertson, the Second Circuit, in affirming summary judgment entered against plaintiff, found that the plaintiff had not “met his burden to show that his [allergic Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 60 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 reaction] was serious enough such that the delay in treatment here posed an unreasonable risk of severe damage to his health.” 828 F. App'x at 803–04. While the court “presumed” that, for purposes of the summary judgment motion, the plaintiff “indeed suffered from an allergic reaction to cause him some level of respiratory distress,” id. at 804, this reaction on its own this did not meet plaintiff's burden. Unlike the plaintiff in Yancey, Plaintiff did not seek out medical care for his allergic reaction while he was experiencing the reaction or afterwards. Plaintiff also does not claim that his daily activities were significantly affected by the reaction, that he was in chronic or substantial pain, that he suffered any long-term effects from the NSAIDs, or that the symptoms were so acute that he sought out immediate medical attention. Plaintiff's testimony indicates that his symptoms subsided by the following day. (See Pl. Tr. 95:3–25.) Plaintiff does, however, claim that he “fainted out” and lost track of events for some time, which is more severe than the allergic reaction the plaintiff in Yancey suffered. 828 F. App'x at 804. Despite Plaintiff's failure to provide other evidence of the incident, 18 based on Plaintiff's testimony, a jury could reasonably conclude that his allergic reaction was sufficiently serious to create a condition of urgency that might produce death, degeneration, or extreme pain. b. Mens Rea Component Plaintiff fails, however, to identify sufficient support in the record to establish that Ms. Brady possessed the requisite mens rea. He alleges in the Complaint that Ms. Brady told him she wished he “would have died.” (Compl. ¶ 33.) But on a motion for summary judgment, the Court is not required to consider the allegations of an unverified complaint that are not supported by other evidence in the record. See Taylor, 904 F. Supp. at 232. Plaintiff's sworn testimony at his deposition shows that when he confronted Ms. Brady the day after his allergic reaction, demanding to know what medication she had administered to him, she told him that it was ibuprofen, and when he informed her that he was allergic to NSAIDs, Ms. Brady said, “Oh, oh,” and left. (Pl. Tr. 95:19–22.) This description of Ms. Brady's reaction is insufficient to establish that she acted recklessly or intentionally in giving him an NSAID. Plaintiff has thus failed to establish that Ms. Brady had the requisite mens rea for his claim of deliberate indifference. *20 Accordingly, the Court grants summary judgment as to Plaintiff's claims relating to allegations that Ms. Brady improperly administered medication to which she knew or should have known he was allergic. E. Monell Liability Plaintiff argues that Armor is liable under Section 1983. Because Plaintiff has set forth sufficient evidence to create a genuine dispute of material fact, summary judgment is denied as to this claim. A municipal entity may be held liable under Section 1983 where a plaintiff demonstrates that the constitutional violation complained of was caused by a municipal “policy or custom.” Monell, 436 U.S. at 694–95. “Although the Supreme Court's interpretation of § 1983 in Monell applied to municipal government and not to private entities acting under color of state law, case law has extended the Monell doctrine to private § 1983 defendants acting under color of state law.” Gleeson v. Cnty. of Nassau, No. 15-CV-6487 (AMD)(RL), 2019 WL 4754326, at *14 (E.D.N.Y. Sept. 30, 2019) (quoting Dilworth v. Goldberg, No. 10-CV-2224 (RJH)(GWG), 2011 WL 3501869, at *24 (S.D.N.Y. July 28, 2011)). A plaintiff can prove the existence of a policy or custom by establishing “(1) a formal policy; (2) action taken or decisions made by policymakers that caused the violation; (3) a practice so persistent and widespread that it constitutes a ‘custom or usage;’ or (4) a failure to properly train or supervise [entity] employees.” Gleeson, 2019 WL 4754326, at *14 (citing Byvalets v. New York City Hous. Auth., No. 16- CV-6785 (CBA), 2017 WL 7793638, at *14 (E.D.N.Y. July 28, 2017)). Plaintiff argues that Defendant Armor has a widespread and well-settled custom of providing inadequate medical care to inmates. “Since Armor was hired to fulfill the state's constitutional obligation to provide necessary medical care for its inmates, the Court finds that it was a state actor that can be sued pursuant to Section 1983.” Ryan, 2016 WL 11500151, at *7 (internal quotation omitted). In support of his claim, Plaintiff points to various New York State Commission of Correction (“NYS COC”) reports that document the conditions surrounding the deaths of numerous inmates under Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 61 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 Armor's care between 2012 and 2016. (See generally “NYS COC Reports,” Ex. H to Brewington Decl., Dkt. 109-24.) Courts in this District have construed “widespread” to mean that “the unconstitutional acts in question are common or prevalent throughout the entity,” and “well-settled” to mean that “the unconstitutional acts have achieved permanent, or close to permanent, status.” Gazzola v. Cnty. of Nassau, No. 16-CV-0909 (JS)(AYS), 2022 WL 2274710, at *12 (E.D.N.Y. June 23, 2022) (internal quotation omitted). “While there is no magic number of instances of unconstitutional conduct that will suffice to permit the inference of a broader municipal policy or custom,” id. (internal quotation omitted), where a plaintiff supports his claim with government reports “like the NYS COC,” the Court must ensure that “those reports are sufficiently connected to the specific facts of the case.” Isaac v. City of New York, No. 16-CV-4729 (KAM), 2018 WL 5020173, at *17 (E.D.N.Y. Aug. 6, 2018) (quoting Gomez v. City of New York, No. 16-CV-1274 (NGG)(LB), 2017 WL 1034690, at *11 (E.D.N.Y. Mar. 16, 2017)), R&R adopted, 2018 WL 4583481 (E.D.N.Y. Sept. 24, 2018). *21 The NYS COC reports detail Armor's repeated failures to deliver adequate medical care to inmates at NCCC during the time period when Plaintiff alleges he was subjected to deliberate indifference to his serious medical conditions. The reports specifically call attention to “Armor's pattern of failing to properly manage patients[’] chronic medical needs.” (NYS COC Reports at 22, 30, 41.) As this Court has repeatedly found, such evidence sufficiently raises a genuine issue of material fact as to the existence of a custom of denying inmates adequate medical care. See, e.g., Gazzola, 2022 WL 2274710, at *12 (finding a genuine dispute as to whether Armor had a custom of providing inadequate medical care where the plaintiff provided NYS COC reports about instances similar to plaintiff's allegations during a similar time period); Gleeson, 2019 WL 4754326, at *16 (same). Accordingly, summary judgment as to Plaintiff's Monell claim is denied. CONCLUSION For the foregoing reasons, Defendants’ Motion for Summary Judgment is granted as to the claims against Denise Brady and denied as to the claims against Dr. Vincent Manetti and Armor Correctional Health Services. All Citations Slip Copy, 2025 WL 974347 Footnotes 1 Beginning with number 7, Plaintiff has misnumbered his responses to Defendants’ statements. The Court uses the Defendants’ numbering system when citing to Plaintiff's responses in his Statement of Disputed Facts. 2 Because of inconsistencies in page numbering of exhibits attached to the Brewington Declaration, the Court refers to the ECF pagination. 3 Plaintiff was given an “Initial Mental Health Evaluation” on September 20, 2014, which has been submitted to the Court only as an exhibit to the report of Defendant's expert Dr. Mathis. (See “Mathis Report” at 96 (ECF pagination), Dkt. 117.) 4 Tramadol is a generic equivalent to Ultram. See, e.g., Alston v. Caraco Pharm., Inc., 670 F. Supp. 2d 279, 281 (S.D.N.Y. 2009). 5 Gabapentin is the generic name for Neurontin. See, e.g., In re Neurontin Mktg., Sales Pracs., & Prod. Liab. Litig., 612 F. Supp. 2d 116, 122 n.5 (D. Mass. 2009). 6 Plaintiff disputes these statements, but his disagreement is not responsive. (See Pl. 56.1 ¶ 44.) Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 62 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 16 7 Plaintiff disputes these statements, but his disagreement is not responsive. (See Pl. 56.1 ¶¶ 41, 45, 46.) 8 Plaintiff's deposition testimony was slightly inconsistent as to when he began receiving nortriptyline. He testified that he began receiving the medication within a week after he arrived at NCCC: “Q. After that phone call [by Dr. Marcos to CVS], what medications did Armor prescribe you for your pain? A. They gave me the Neurontin and she ordered me Ultram and Nortryptylene [sic].” Q. That's for the mental health? A. Right. Q. The Nortryptylene, is that for anxiety or depression or both? A. A lot of them are like combo. Q. How soon after you arrived at the facility in 2014 did they start giving you the Neurontin and Ultram? A. I would say within a week approximately. Q. Was it the same for the mental health medication, the Nortryptylene? A. Yes.” (Pl. Tr. 80:7–24.) 9 For example: • On October 10, 2014, Plaintiff stated, “I need meds, I'm stressed.” (Ex. C-1 to Brewington Decl. at 17). • On October 17, 2014, Plaintiff stated that he was okay but wanted depression medication. (Id. at 20.) • On October 24, 2014, Plaintiff stated, “I'm depressed still.” (Id. at 21.) • On October 31, 2014, Plaintiff stated “I'm in pain and my whole life has been a mess.” (Id. at 14.) • On November 7, 2014, Plaintiff stated “I'm still not getting medication.” (Id. at 32.) • On December 3, 2014, Plaintiff stated, “I'm depressed and need meds.” (Id. at 34.) • On January 14, 2015, Plaintiff stated, “I'm feeling better, still anxious.” (Ex C-2 to Brewington Decl. at 8.) • On February 4, 2015, Plaintiff stated, “still depressed and making it work.” (Id. at 17.) • On March 6, 2015, Plaintiff stated, “I'm okay waiting for court.” (Id. at 17.) 10 Plaintiff's sick call requests complaining of pain include, inter alia: • On September 27, 2014, Plaintiff wrote, “massive chronic pain in cervical spine” (Ex J-1 to Brewington Decl. at 3, Dkt. 108-9). • On October 7, 2014, he wrote, “I do not sleep, or rest at all due to serious neck trauma.” (Id. at 6). • On October 21, 2014, Plaintiff wrote that he had “crushing pain in base of neck.” (Id. at 8.) • On October 23, 2014, he wrote, “Loss of about 50% or more of left arm strength (numb and in pain) and about 30% of left leg since seizure.” (Id. at 9.) • On November 20, 2014, he wrote, “severe pain and numbness in both arms and left leg!” (Id. at 12.) • On November 22, 2014, Plaintiff wrote, “I have been experiencing massive pinched nerve migraine headaches every day along with problems with lft. side of my body!” (Id. at 13.) • On December 4, 2014, he wrote, “I am in extreme amounts of pain all day and night....” (Id. at 17.) • On December 12, 2014, Plaintiff wrote, “[E]xcruciating migraine headaches and severe neck pain and lower back and leg pains.” (Id. at 20.) Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 63 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 17 • On February 3, 2015, he wrote, “I am in excruciating pain in my cervical spine and lumbar spine from bulged discs w/ pinched nerves.” (Id. at 31.) • On March 20, 2015, Plaintiff wrote, “Extreme pain in lower back....” (Id. at 43.) 11 Plaintiff “disputes” this statement but does not dispute that this was the conclusion that Herrington reached. (See Pl. 56.1 Opp. ¶ 61.) 12 Although the Complaint (which has never been amended) does not name Armor as a defendant in its caption, Judge Bianco noted that Plaintiff had “plausibly alleged that Armor had a custom or policy of denying inmates adequate medical care,” Donohue, 2016 WL 740439, at *6, and concluded that the claims against Armor could proceed along with those against Manetti and Brady, id. Federal Rule of Civil Procedure 10(a) mandates that the caption of a pleading contain the names of all parties. Rapp v. Fowler, 537 F. Supp. 3d 521, 526 (S.D.N.Y. 2021) (“ ‘[T]hough seemingly pedestrian,’ Rule 10(a) ‘serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly.’ ” (quoting Fed. R. Civ. P. 10(a))). However, “where a party has actual notice of a suit and is correctly identified in the body of the complaint, courts have typically held that an error in the caption is a technical defect.” Nationwide Mut. Ins. Co. v. Kaufman, 896 F. Supp. 104, 109 (E.D.N.Y. 1995). Courts “should be guided by whether a reasonably knowledgeable layperson could conclude, from the circumstances, that he or she had been made a party to a lawsuit.” Id. Here, the Complaint contained sufficient factual allegations against Armor such that it has defended itself in this action as if it had been formally named a defendant. For example, on March 30, 2015, John J. Doody, Esq., entered an appearance on behalf of “Defendants Armor Correctional Health Services of New York, Inc. i/s/h/a ‘Armor Correctional Health Services,’ Dr. Vincent Manetti, by his employer Armor Correctional Health Services, [and] Nurse Jane Brady, by her employer Armor Correctional Health Services.” (Notice of Appearance at 1, Dkt. 7.) Defendants argued in their Motion to Dismiss that Plaintiff had failed to state a claim under Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978) by failing to establish that Armor had a custom of providing insufficient medical care. (Mot. To Dismiss at 8, Dkt. 16.) At Plaintiff's deposition on August 12, 2019, Dale McLaren, Esq. introduced himself as counsel for Armor. (Pl. Tr. 3:7-15.) In the Motion, Defendants again argue against Monell liability. Although Defendants claim that Judge Bianco “mistakenly” included Armor as a remaining defendant in the Order on the Motion to Dismiss (Def. Supp. Br. at 2 (Dkt. 119)), Defendants never requested a correction or reconsideration. Accordingly, the Court considers the failure to include Armor as a defendant in the caption of this case to be a technical defect and respectfully direct the Clerk of Court to amend the caption now to name Armor as a defendant. 13 Plaintiff was granted leave to amend the Complaint with regard to Sposato, John Doe and Jane Doe but failed to do so, and the claims against these defendants were dismissed on May 14, 2019. (Dkt. 61.) 14 Plaintiff argues that by failing to file an answer, Defendants “essentially defaulted.” (Plaintiff's Memorandum of Law Opposing Summary Judgment (“Pl. Mem.”) at 3, Dkt. 109-29.) The Court rejects this argument, as Defendants have vigorously defended themselves notwithstanding this lacuna in their pleadings. 15 In Block, the defendants raised the affirmative defense of statute of limitations for the first time on summary judgment. 988 F.2d at 350. Although they had not moved to amend their answer to include the statute of limitations as an affirmative defense, the district court construed their summary judgment motion also as a motion to amend their answer and applied the analysis under Rule 15(a). The Second Circuit affirmed the Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 64 of 107
Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 18 district court's decision to grant defendants leave to amend their answer on the basis that the plaintiff did not demonstrate bad faith or prejudice. Id. at 350–51. 16 Defendants request, in the alternative, leave to file an answer now. (Defendants’ Reply in Support of Motion for Summary Judgment at 4–5, Dkt. 121.) For the reasons stated above applicable to consideration of a motion to amend, the Court denies Defendants’ request. 17 Although “[c]ourts have traditionally referred to this second element as the ‘subjective prong,’ ” as discussed below, it “might better be described as the ‘mens rea prong’ or ‘mental element prong.’ ” Darnell, 849 F.3d at 32. 18 Courts have found that the lack of corroborating evidence can be insufficient to grant summary judgment. See, e.g., Bradshaw, 855 F. App'x at 9 (“A single witness's sworn testimony, if believed by a jury, can support a verdict, and is enough to raise a genuine issue of fact precluding summary judgment.”); Coughlin, 344 F.3d at 289–90 (“By finding against [plaintiff] on the basis of the disparity between some of [plaintiff's] medical records and statements in his affidavit, the district court made an impermissible credibility determination and weighed contradictory proof. The credibility of [plaintiff's] statements and the weight of contradictory evidence may only be evaluated by a finder of fact.”). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 65 of 107
Hudson v. Artuz, Not Reported in F.Supp.2d (1998) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 1998 WL 832708 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Theodore HUDSON, Plaintiff, v. Christopher ARTUZ, Warden Philip Coombe, Commissioner Sergeant Ambrosino Doctor Manion Defendants. No. 95 CIV. 4768(JSR). | Nov. 30, 1998. Attorneys and Law Firms Mr. Theodore Hudson, Great Meadow Correctional Facility, Comstock. Alfred A. Delicata, Esq., Assistant Attorney General, New York. MEMORANDUM AND ORDER BUCHWALD, Magistrate J. *1 Plaintiff Theodore Hudson filed this pro se action pursuant to 42 U.S.C. § 1983 on April 26, 1995. Plaintiff's complaint alleges defendants violated his constitutional rights while he was an inmate at Green Haven Correctional Facility. 1 Plaintiff's complaint was dismissed sua sponte by Judge Thomas P. Griesa on June 26, 1995 pursuant to 28 U.S.C. § 1915(d). On September 26, 1995, the Second Circuit Court of Appeals vacated the judgment and remanded the case to the district court for further proceedings. The case was reassigned to Judge Barbara S. Jones on January 31, 1996. Defendants moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(c) on November 25, 1996. Thereafter, the case was reassigned to Judge Jed S. Rakoff on February 26, 1997. On February 26, 1998, Judge Rakoff granted defendants' motion to dismiss, but vacated the judgment on April 10, 1998 in response to plaintiff's motion for reconsideration in which plaintiff claimed that he never received defendants' motion to dismiss. By Judge Rakoff's Order dated April 14, 1998, this case was referred to me for general pretrial purposes and for a Report and Recommendation on any dispositive motion. Presently pending is defendants' renewed motion to dismiss. Plaintiff filed a reply on July 6, 1998. For the reasons discussed below, plaintiff's complaint is dismissed without prejudice, and plaintiff is granted leave to replead within thirty (30) days of the date of the entry of this order. FACTS Plaintiff alleges that he was assaulted by four inmates in the Green Haven Correctional Facility mess hall on March 14, 1995. (Complaint at 4.) He alleges that he was struck with a pipe and a fork while in the “pop room” between 6:00 p.m. and 6:30 p.m. (Complaint at 4–5.) Plaintiff contends that the attack left him with 11 stitches in his head, chronic headaches, nightmares, and pain in his arm, shoulder, and back. (Id.) Plaintiff also states that Sergeant Ambrosino “failed to secure [the] area and separate” him from his attackers. (Reply at 5.) Plaintiff's claim against Warden Artuz is that he “fail [sic] to qualify as warden.” (Complaint at 4.) Plaintiff names Commissioner Coombes as a defendant, alleging Coombes “fail [sic] to appoint a qualified warden over security.” (Amended Complaint at 5.) Plaintiff further alleges that Dr. Manion refused to give him pain medication. (Complaint at 5.) Plaintiff seeks to “prevent violent crimes” and demands $6,000,000 in damages. (Amended Complaint at 5.) Defendants moved to dismiss the complaint, arguing that: (1) the Eleventh Amendment bars suit against state defendants for money damages; (2) the plaintiff's allegations fail to state a claim for a constitutional violation; (3) the defendants are qualifiedly immune from damages; and (4) plaintiff must exhaust his administrative remedies before bringing this suit. DISCUSSION I find that plaintiff's complaint runs afoul of Rules 8 and 10 of the Federal Rules of Civil Procedure and dismiss the complaint without prejudice and with leave to amend. Federal Rule 8 requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The purpose of this Rule “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense.” Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 66 of 107
Hudson v. Artuz, Not Reported in F.Supp.2d (1998) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Califano, 75 F.R.D. 497, 498 (D.D.C.1977)); see Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (stating that the “principal function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial”). *2 Rule 10 of the Federal Rules of Civil Procedure requires, inter alia, that the allegations in a plaintiff's complaint be made in numbered paragraphs, each of which should recite, as far as practicable, only a single set of circumstances. Moore's Federal Practice, Vol. 2A, ¶ 10.03 (1996). Rule 10 also requires that each claim upon which plaintiff seeks relief be founded upon a separate transaction or occurrence. Id. 2 The purpose of Rule 10 is to “provide an easy mode of identification for referring to a particular paragraph in a prior pleading.” Sandler v. Capanna, 92 Civ. 4838, 1992 WL 392597, *3 (E.D.Pa. Dec.17, 1992) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1323 at 735 (1990)). A complaint that fails to comply with these pleading rules “presents far too heavy a burden in terms of defendants' duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of” a plaintiff's claims. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y.1996). It may therefore be dismissed by the court. Id.; see also Salahuddin v. Cuomo, 861 F.2d at 42 (“When a complaint does not comply with the requirement that it be short and plain, the court has the power to, on its own initiative, ... dismiss the complaint”). Dismissal, however, is “usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Id. In those cases in which the court dismisses a pro se complaint for failure to comply with Rule 8, it should give the plaintiff leave to amend when the complaint states a claim that is on its face nonfrivolous. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir.1995). In determining whether a nonfrivolous claim is stated, the complaint's allegations are taken as true, and the “complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v.. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The complaint of a pro se litigant is to be liberally construed in his favor when determining whether he has stated a meritorious claim. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Even if it is difficult to determine the actual substance of the plaintiff's complaint, outright dismissal without leave to amend the complaint is generally disfavored as an abuse of discretion. See Salahuddin, 861 F.2d at 42–42; see also Doe v. City of New York, No. 97 Civ. 420, 1997 WL 124214, at *2 (E.D.N.Y. Mar.12, 1997). Here, plaintiff's pro se complaint fails to satisfy the requirements of Federal Rules 8 and 10. The complaint is often illegible and largely incomprehensible, scattering what appear to be allegations specific to plaintiff within a forest of headnotes copied from prior opinions. Defendants have answered with a boilerplate brief, which is perhaps all a defendant can do when faced with such a complaint. The Court is left with an insurmountable burden in attempting to make a reasoned ruling on such muddled pleadings. *3 Although plaintiff's complaint is substantially incomprehensible, it appears to plead at least some claims that cannot be termed frivolous on their face. For example, plaintiff clearly alleges that inmates assaulted him and that Dr. Manion refused to provide him medical attention. He also appears to assert that Sergeant Ambrosino failed to protect him from the attack or take steps to prevent future attacks. (Plaintiff's Reply at 5). It is well established that an inmate's constitutional rights are violated when prison officials act with deliberate indifference to his safety or with intent to cause him harm. Hendricks v. Coughlin, 942 F.2d 109 (2d Cir.1991). It is similarly well established that an inmate's constitutional rights are violated when a prison doctor denies his request for medical care with deliberate indifference to the inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hathaway v. Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Although plaintiff provides few facts to support his allegations, I disagree with defendants' assertion that outright dismissal is appropriate because it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Defendant's Memorandum at 5 (quoting Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Because plaintiff's complaint does not comply with Rules 8 and 10, it is hereby dismissed without prejudice, and plaintiff is granted leave to replead within thirty (30) days of the date of the entry of this Order. In drafting his second amended complaint, plaintiff is directed to number each paragraph and order the paragraphs chronologically, so that each incident in Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 67 of 107
Hudson v. Artuz, Not Reported in F.Supp.2d (1998) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 which he alleges a constitutional violation is described in the order that it occurred. Plaintiff is also directed to specifically describe the actions of each defendant that caused plaintiff harm, and to do so in separate paragraphs for each defendant. Plaintiff's complaint shall contain the facts specific to the incidents plaintiff alleges occurred, and not any facts relating to any case that has been decided previously by a court of law. Plaintiff's complaint shall also contain a clear statement of the relief he seeks in addition to monetary damages. CONCLUSION For the reasons set forth above, plaintiff's complaint is dismissed without prejudice, and plaintiff is granted leave to replead within thirty (30) days of the date of the entry of this Order. IT IS SO ORDERED. All Citations Not Reported in F.Supp.2d, 1998 WL 832708 Footnotes 1 Plaintiff is presently incarcerated at Sullivan Correctional Facility. 2 Rule 10 states: (b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 68 of 107
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag Disagreement Recognized by United House of Prayer for All People v. Therrien Waddell, Inc., D.C., March 26, 2015 647 F.3d 419 United States Court of Appeals, Second Circuit. L–7 DESIGNS, INC., Plaintiff–Appellant, v. OLD NAVY, LLC, Defendant–Appellee. Docket No. 10–573–cv | Argued: Feb. 7, 2011. | Decided: June 1, 2011. Synopsis Background: Manager of design services and intellectual property rights filed action against retailer alleging wrongful termination and trade disparagement to its claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and fraud. Retailer counterclaimed. The United States District Court for the Southern District of New York, Denny Chin, J., 2010 WL 157494 and 2010 WL 532160, dismissed action. Plaintiff appealed. Holdings: The Court of Appeals, Shira A. Scheindlin, District Judge, of the United States District Court for the Southern District of New York, sitting by designation, held that: [1] manager stated claim that retailer had breached duty to negotiate licensing agreement in good faith and [2] wrongful termination claim had been stated. Affirmed in part, vacated in part, and remanded. Procedural Posture(s): On Appeal; Motion to Dismiss; Motion to Dismiss for Failure to State a Claim. West Headnotes (17) [1] Federal Civil Procedure Matters considered On a motion for judgment on the pleadings, a court considers the complaint, the answer, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case. Fed.Rules Civ.Proc.Rule 12(c), 28 U.S.C.A. 797 Cases that cite this headnote [2] Federal Civil Procedure Matters considered On a motion for judgment on the pleadings, a complaint is deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are integral to the complaint. 749 Cases that cite this headnote [3] Federal Civil Procedure Matters considered On motion for judgment on the pleadings, email exhibits were “attached” to answer, even if they were only “part of” counterclaims that were filed in same document. Fed.Rules Civ.Proc.Rules 10(c), 12(c), 28 U.S.C.A. 20 Cases that cite this headnote More cases on this issue [4] Federal Civil Procedure Matters considered Emails of which plaintiff had notice well before defendant attached them to its answer because plaintiff sent or received them were “integral” to negotiation exchange that plaintiff identified as basis for its complaint, and thus could be considered by court on motion for judgment on the pleadings. Fed.Rules Civ.Proc.Rules 10(c), 12(c), 28 U.S.C.A. 190 Cases that cite this headnote More cases on this issue [5] Federal Courts Judgment on the pleadings Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 69 of 107
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 A district court's decision to grant a motion for judgment on the pleadings is reviewed de novo. Fed.Rules Civ.Proc.Rule 12(c), 28 U.S.C.A. 18 Cases that cite this headnote [6] Federal Civil Procedure Judgment on the Pleadings Federal Civil Procedure Determination of Motion Federal Civil Procedure Matters deemed admitted When deciding a motion for judgment on the pleadings, the same standard applicable to dismissals pursuant to a motion to dismiss for failure to state a claim upon which relief can be granted is employed; thus, all factual allegations in the complaint are accepted as true and all reasonable inferences are drawn in the plaintiff's favor. Fed.Rules Civ.Proc.Rule 12(b)(6), (c), 28 U.S.C.A. 741 Cases that cite this headnote [7] Contracts Agreement to make contract in future; negotiations in general Under New York law, parties who enter into binding preliminary agreements accept a mutual commitment to negotiate together in good faith in an effort to reach final agreement; these agreements do not commit the parties to reach their ultimate contractual objective, but, instead, they create an obligation to negotiate the open issues in good faith in an attempt to reach the objective within the agreed framework. 17 Cases that cite this headnote More cases on this issue [8] Contracts Agreement to make contract in future; negotiations in general Under New York law, parties who enter into binding preliminary agreements may not renounce the deal, abandon the negotiations, or insist on conditions that do not conform to the preliminary agreement. 16 Cases that cite this headnote More cases on this issue [9] Contracts Agreement to make contract in future; negotiations in general In effect, an agreement to agree under New York law buys a party an assurance that the transaction will falter only over a genuine disagreement, thus allowing a party strapped for time or money to go ahead with arrangements with a sufficient degree of confidence in the outcome; the parties may abandon the transaction as long as they have made a good faith effort to close the deal and have not insisted on conditions that do not conform to the preliminary writing. 11 Cases that cite this headnote More cases on this issue [10] Contracts Sufficiency of allegations to show breach Federal Civil Procedure Contract cases in general To state a claim for breach of contract for failure to negotiate in good faith, a plaintiff must allege the specific instances or acts that amounted to the breach; generalized allegations and grievances will not suffice to survive a motion for judgment on the pleadings. Fed.Rules Civ.Proc.Rule 12(c), 28 U.S.C.A. 36 Cases that cite this headnote [11] Damages Breach of contract Damages Breach of contract On a claim under New York law for breach of contract for failure to negotiate in good faith, out-of-pocket costs incurred in the course of good faith partial performance are appropriate, although lost profits are not available where no agreement is reached. 49 Cases that cite this headnote [12] Copyrights and Intellectual Property Performance and breach Manager of design services and intellectual property rights stated claim that retailer had Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 70 of 107
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 breached duty under New York law to negotiate licensing agreement in good faith on allegations that retailer did not participate in negotiations for nine months and never provided single substantive comment with respect to draft license at any time in particular year. More cases on this issue [13] Copyrights and Intellectual Property Performance and breach Manager of design services and intellectual property rights stated claim that retailer had breached duty under New York law to negotiate licensing agreement in good faith on allegations that retailer had made repeated material representations that it would negotiate terms of license agreement in good faith, which it subsequently learned were false, such as retailer's assurances to manager that its legal team already was working on licensing agreement template, and its multiple promises to get back to manager, which either never happened or only occurred after substantial delay. 2 Cases that cite this headnote More cases on this issue [14] Copyrights and Intellectual Property Performance and breach in general Manager of design services and intellectual property rights stated claim that retailer had breached duty under New York law to negotiate licensing agreement in good faith on allegations that retailer had proposed terms it knew to be in bad faith and economically unfair to manager, believing they would be rejected, and then reneged when manager did accept. More cases on this issue [15] Copyrights and Intellectual Property Performance and breach Design service provider stated wrongful termination claim under New York law on allegations that retailer's termination letter provided only notice of termination, effective immediately, although agreement had required notice of material breach, 30 days' opportunity to cure, failure to cure material breach, and notice of termination. 4 Cases that cite this headnote More cases on this issue [16] Federal Courts Altering, amending, modifying, or vacating judgment or order; proceedings after judgment Motions for reconsideration are generally reviewed under an abuse of discretion standard. 7 Cases that cite this headnote [17] Federal Courts Pleading A denial of leave to amend that is based on a legal interpretation, such as for futility, is reviewed de novo. Fed.Rules Civ.Proc.Rule 15, 28 U.S.C.A. 3 Cases that cite this headnote Attorneys and Law Firms *421 Virginia R. Richard (Lori J. Van Auken on the briefs), Winston & Strawn LLP, New York, NY, for Plaintiff– Appellant. Bruce P. Keller (Shannon R. Selden on the brief), Debevoise & Plimpton LLP, New York, NY, for Defendant–Appellee. Before: DENNIS JACOBS, Chief Judge, PETER W. HALL, Circuit Judge, SHIRA A. SCHEINDLIN, * District Judge. Opinion SHIRA A. SCHEINDLIN, District Court Judge: Plaintiff–Appellant L–7 Designs (“L–7”) appeals from a judgment on the pleadings of the United States District Court for the Southern District of New York (Denny Chin, Judge ), entered on January 21, 2010, dismissing five counts asserted in L–7's Complaint (the “Complaint” or “Compl.”), each arising out of a Creative Services Agreement (the “Agreement”) entered into between L–7 and Defendant– Appellee Old Navy (“Old Navy”) in September of 2007. We conclude that the District Court erred in dismissing Count Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 71 of 107
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 III against Old Navy for failure to negotiate in good faith an alleged agreement to develop and launch a TODD OLDHAM branded line of merchandise (the “Branded Line”) to be sold exclusively in Old Navy stores. The District Court also erred in dismissing Count I for declaratory judgment that Old Navy wrongfully terminated the parties' Agreement under which L– 7's principal, Todd Oldham, was to provide design services to Old Navy. Accordingly, we affirm in part and vacate in part the District Court's judgment, and we remand for further proceedings; in so doing we reverse in part the order of the District Court that dismissed the Complaint and reinstate the Complaint to the extent provided in this Opinion. BACKGROUND 1 I. Materials Properly Considered on a Motion for Judgment on the Pleadings One of the critical issues in this appeal is whether the District Court properly considered not only the Complaint, Old Navy's Answer, and the written documents attached to the Complaint in deciding Old Navy's Rule 12(c) motion, but also five email exhibits to Old Navy's Counterclaims—exhibits that were “attached” to Old Navy's Answer only by virtue of the *422 fact that its Answer and Counterclaims were filed in the same document. L–7 argues the District Court improperly considered the exhibits without converting Old Navy's 12(c) motion to one for summary judgment, as required by Rule 12(d). [1] [2] [3] [4] On a 12(c) motion, the court considers “the complaint, the answer, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case.” Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir.2009). “A complaint is [also] deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are ‘integral’ to the complaint.” Sira v. Morton, 380 F.3d 57, 67 (2d Cir.2004) (citations omitted) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002)). There is no question that the email exhibits were “attached” to Old Navy's Answer, even if they were only “part of” Old Navy's Counterclaims. See Fed.R.Civ.P. 10(c) (“a copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes”) (emphasis added). Moreover, these emails—of which L–7 had notice well before Old Navy attached them to its Answer (because L–7 sent or received them)—were “integral” to the negotiation exchange that L– 7 identified as the basis for its Complaint. See Sira, 380 F.3d at 67 (document not expressly cited in complaint was “incorporated into the pleading because [it] was integral to [plaintiff's] ability to pursue” his cause of action); Chambers, 282 F.3d at 153 (document “integral” to complaint where complaint “relie[d] heavily upon its terms and effect”) (quotation marks omitted); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) (necessity of translating motion into one under Rule 56 “largely dissipated” where plaintiff had “actual notice” of information in documents and “relied upon [them] in framing the complaint”). “Plaintiffs' failure to include matters of which as pleaders they had notice and which were integral to their claim—and that they apparently most wanted to avoid—may not serve as a means of forestalling the district court's decision on [a 12(b) (6) ] motion.” Cortec, 949 F.2d at 44. For these reasons, in reviewing de novo Old Navy's motion for judgment on the pleadings, we draw all facts—which we assume to be true unless contradicted by more specific allegations or documentary evidence—from the Complaint and from the exhibits attached thereto, 2 and we also consider the emails attached to Old Navy's Counterclaims. See Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 222 (2d Cir.2004) (discrediting allegation “belied” by letters attached to the complaint); Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir.1995) (“General, conclusory allegations need not be credited ... when they are belied by more specific allegations of the complaint.”). The facts thus derived, viewed in the light most favorable to L– 7, are as follows. II. The Parties L–7's principal, Todd Oldham, is a world famous artist, fashion and graphic designer, photographer, writer, and television personality. He formed L–7 in 1989 to manage his design services and intellectual property rights, including eight U.S. federal registrations for the mark TODD OLDHAM. “[A] luminary in the fashion and design industry for over twenty years,” Oldham is “considered one of the most important designers of fashion and *423 home furnishings working today” and “the singular talent behind the internationally famous TODD OLDHAM brand.” Compl. ¶ 8. For more than a decade, Oldham and L–7 have collaborated on a variety of TODD OLDHAM branded merchandise. 3 Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 72 of 107
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 Old Navy, a subsidiary of Gap Inc., operates a chain of retail apparel stores, with more than a thousand stores throughout the United States and Canada. For at least the last five years, Old Navy has been suffering declining sales. One of its strategies for increasing sales has been to increase its appeal to younger consumers. III. The Agreement In the spring of 2007, L–7 approached Old Navy to discuss the possibility of entering into a relationship with L–7, and Old Navy, “enthusiastic about this possibility,” ultimately requested that Oldham become the company's new Design Creative Director. Id. ¶ 26. In order to induce Oldham to join Old Navy's design team, Old Navy proposed to introduce a TODD OLDHAM branded line of clothing, and to pay royalties to L–7 in the form of five percent of the Branded Line's sales. Faced with continuing declining sales, Old Navy pushed Oldham to enter into an agreement quickly so that it could publicly announce both Oldham's appointment as Old Navy's Design Creative Director and also the launching of the Branded Line. On September 21, 2007, the parties entered into the Agreement, 4 under which L–7 was to perform certain “Services” and provide certain “Deliverables,” as set forth in a “Scope of Work” (the “SOW”) attached to the Agreement. Agreement § 1. Under the SOW, Oldham would provide design services for Old Navy for three years in exchange for an annual “fee” of $2 million; in addition, Oldham would receive a guaranteed bonus of $0.5 million in year one and, in years two and three, 1.25 percent of the year's incremental sales (not to exceed $6 million). SOW §§ 1, 2. Section 5 provided that during the term of the Agreement, “either party may terminate this Agreement, effective immediately upon notice thereof, in the event of a material breach of this Agreement that remains uncured after thirty (30) days written notice of the breach to the other party.” IV. The Licensing Agreement Section 5 of the SOW, entitled “Todd Oldham Branded Line,” provided as follows: a. In September 2007, the parties will announce publicly that Todd Oldham/[L–7] shall be serving as Design Creative Director of Old Navy and that it is the intent of the parties to develop and launch a line of products that will bear TODD OLDHAM Marks to be sold exclusively at Old Navy stores at a future time. b. [L–7] and Old Navy acknowledge and agree that the specific terms and conditions related to this proposed line of products bearing TODD OLDHAM Marks are to be negotiated and agreed upon by the parties in a separate agreement. The parties plan to enter into a separate agreement related to these products by October 1, 2008. c. The parties agree that this separate agreement will contain at least the following: (1) royalty fees paid to [L– 7] of 5% of Old Navy's retail sales for this particular line only (not all Old Navy products) and (2) agreement and final *424 approval by both Old Navy and [L–7] as to the collections and products to be sold by Old Navy. On September 21, 2007, Old Navy announced via a press release that it intended to launch the Branded Line. On October 3, 2007, Monika Fahlbusch (the Old Navy executive assigned to the Branded Line) emailed Vital Vayness (L–7's representative) to “recommend we plan to begin [discussion on the license agreement for the Branded Line] in our new fiscal year—say in April? We have until October so there is no rush....” Ex. 19. Thereafter, L–7 and Oldham performed their obligations under the Agreement, and Old Navy executives publicly and privately praised Oldham's performance as Design Creative Director. V. April–October 2008 Negotiations On April 2, 2008, L–7 (Vayness) “initiated negotiations to finalize” the licensing agreement for the Branded Line by emailing Fahlbusch (Old Navy) L–7's standard form license agreement and a term sheet that outlined a three-year initial term and annual guaranteed minimum royalties (the “April Proposal”). Compl. ¶ 44. The email suggested that Old Navy “formulate [its] initial thoughts, needs and objectives” and then “present to [Oldham] in [M]ay” while Fahlbusch (Old Navy), Vayness (L–7), and Old Navy's attorney “begin work on the language of the contract.” Ex. 17. Commencing in May 2008, Old Navy made “material representations” that were “false, as [L–7] subsequently learned.” Compl. ¶ 47; accord Ex. 19. For example in May of 2008, Fahlbusch (Old Navy) assured Vayness (L–7) that she was “already working with our legal team on the Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 73 of 107
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 licensing agreement template.” Ex. 19. But throughout the late spring and summer of 2008, L–7 repeatedly followed up with Fahlbusch and Old Navy's Executive Vice President, Douglas Howe, seeking feedback on the April Proposal and on a “redirection” Old Navy was taking in its “approach,” with little or no followup. Exs. 19–20. During one meeting in June of 2008 at which Oldham (L–7), Howe (Old Navy), and Tom Wyatt (another Old Navy executive) were present, Old Navy proposed postponing discussions of the Branded Line. Nevertheless, on June 12, 2008, Vayness (L–7) indicated to Fahlbusch (Old Navy) that “things are proceeding in the right direction with the branded line.” Ex. 19. In a late July 2008 email, Fahlbusch (Old Navy) suggested that the reason for Old Navy's delay in getting back to L– 7 was that “next steps” on the Branded Line license would be “impacted by who is named President.” Id. Vayness (L– 7) responded the same day, reminding Fahlbusch (Old Navy) that “we have a provision in the contract calling for the license agreement to be entered into by October 1st.” Id. On September 2, 2008, Vayness (L–7) emailed Fahlbusch (Old Navy) seeking Old Navy's feedback on the terms set forth in L–7's April 2008 email, indicating that L–7 was “ready to discuss [11 points] as early as possible.” Ex. 20. L– 7 followed up with emails and telephone calls to Fahlbusch (Old Navy) on September 7, 9, and 10, 2008. On September 10, 2008, Fahlbusch (Old Navy) recommended that Oldham start working “directly” with Howe “as it seems we all have a different understanding of the numerous conversations in recent months related to the branded line.” Id. On September 30, 2008, Wyatt (Old Navy) advised L–7 in a telephone call for the first time that Old Navy wished to postpone the signing of a license for the Branded Line “ ‘indefinitely.’ ” Compl. *425 ¶ 52 (quoting Wyatt). 5 In response, L–7 stated that it expected Old Navy to provide it with definitive dates to restart negotiations, enter into the licensing agreement, and launch the Branded Line, and compensation for the postponement of the initial October 1, 2008 signing date. Old Navy failed to provide a response within a week as promised. VI. Fall 2008 Notice of Breach and Demand for Damages On October 7, 2008, L–7 advised Old Navy's in-house counsel that Old Navy was in material breach of the Agreement for failing to negotiate in good faith. See Ex. 23. Counsel for Old Navy responded a week later, stating Old Navy's view that the Agreement “does not obligate Old Navy to enter into a separate license agreement for Todd Oldham branded products” and that although Old Navy did not “foreclose the possibility of engaging in discussions about Todd Oldham branded products in the future if business conditions permit, [Old Navy is] not currently in a position to make a commitment to any such future discussions.” Ex. 24. The next day, Wyatt, then President of Old Navy, told Oldham that Old Navy was “ ‘very, very sorry’ but because of economic conditions, Old Navy could not follow through with the promised license for a TODD OLDHAM branded line of apparel to be carried exclusively in Old Navy stores.” Compl. ¶ 55. After waiting thirty days from Old Navy's receipt of L– 7's October 7th notice of breach, outside counsel for L– 7 sent a letter to Old Navy requesting that Old Navy remedy the damage to L–7 caused by Old Navy's breach by (1) compensating L–7 for lost royalties and reputational damages (estimated at $75 million) and (2) paying Oldham his expected fees for the second and third years of the Agreement ($4 million). VII. Old Navy's December 2008 Response On December 3, 2008, counsel for Old Navy responded, denying that Old Navy was obligated to enter into a license agreement or had failed to negotiate in good faith. Counsel for Old Navy explained that, in the course of their negotiations, differences emerged in the parties' positions, including on such essential issues as the types of products to be included in the line, how many stores would be included in a launch, the staffing necessary to support such a line, and, most importantly, the timing of any such launch. Ex. 26. According to Old Navy's counsel, “business circumstances made an extensive launch in the immediate near term unfeasible.” Id. Thereafter, from December 15, 2008 to February 6, 2009, Old Navy engaged in “sham negotiations,” falsely representing that it fully intended to enter into a license agreement. Compl. ¶ 124. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 74 of 107
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 VIII. The Old Navy January 2009 Proposal The parties met once in December 2008 and several times in January 2009 to “work out the details of the license agreement,” a further draft of which L–7 supplied to Old Navy on December 15, 2008. Compl. ¶ 60. On January 8, 2009, one hour before a scheduled conference call, Old Navy proposed a launch at 100 Old Navy stores (“As you know, our history of presenting third party-branded product in our stores is relatively short ...”); a one-year *426 commitment beginning in the spring of 2010; no additional personnel resources; and a one-year projected royalty of $1.5 million (“... our previous discussions have never contemplated any royalty minimum guarantees, and, as a general rule, our company has not and will not agree to minimum guarantees. This has been consistent in all of our recent agreements.”) (the “January Proposal”). Ex. 27. IX. January 2009 Discussions 6 Oldham responded immediately by email to Old Navy's January Proposal: [Your projections] seem EXTREMELY uncommitted to me. This feels like an effort to absolve old navy's contractual responsibilities and not a commitment to build a new brand that was made to me when i joined and what you reiterated to me last month. 100 stores will not work. the 1 million in launch dollars will not be effective. the one year commitment is too brief as there are so many hiccups in launching a brand.... i hope that we can get this resolved but we are very far away from a reasonable plan. the volume of work necessary to bring a project of this scale to bloom is at great odds with your financial projections. Counterclaims Ex. A. In the discussions that followed, L–7 asked for a minimum guarantee of $37.5 million for a three- year term and then reduced the request to $20 million for a two-year term. On January 16, 2009, L–7 inquired of Old Navy whether it had “made any changes to any of its positions as stated [in the January Proposal].” Id. Ex. E. Old Navy responded the next day: To date, we have not been presented with any comprehensive counteroffer and instead there has been a [sic] insistence on large guaranteed minimum payments that we have explained are unacceptable and inconsistent with our business plans and practices.... Id. Ex. D. Additional emails were exchanged, and on January 29, 2009, the parties held a conference call, during which they agreed to talk again after speaking with their respective “principals.” Ex. 28. The same day, L–7 emailed Old Navy a “revised proposal” reflecting Oldham's input on the points discussed during the call. Id. X. February 2009 Communications Four days later, on February 2, 2009, Old Navy responded to L–7's January 29th email, advising L–7 that “despite our best efforts to negotiate an agreement that would be reasonable and mutually acceptable, we have not reached and will not be able to reach common ground on key business terms,” reiterating that minimum guaranteed payments were “inconsistent with our business plans and practices.” Id. Vayness (L–7) responded the same day, explaining his “surprise” at Old Navy's email given that the January 29, 2009 call was “completely amicable, polite, professional, and [ ] friendly” and that none of the points discussed during that call “was left off as a deal breaker.” Id. The email went on to list items as to which L–7 contended there was agreement (“number of stores,” “products,” “timeline and term,” “marketing,” “royalty rate,” and “territory”); items that it was “now prepared” to accept, including no minimum guaranteed royalties; two points that needed clarification (“personnel” and “development budget”); and one issue “to be agreed to,” namely ownership of “designs.” *427 7 Id. On February 6, 2009, Old Navy advised L–7 that material “open issues” remained, and that, in light of the nature of the Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 75 of 107
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 negotiations, Old Navy did not believe that a “collaborative partnership” could be established. Compl. ¶ 62. XI. Old Navy's Termination of the Agreement On February 18, 2009, L–7 commenced this lawsuit against Old Navy, filing under seal a complaint alleging breach of contract, breach of the implied duty of good faith and fair dealing, and fraud. Two days later, on February 20, 2009, counsel for Old Navy sent L–7 a letter terminating the Agreement (“Termination Letter”) on the grounds that L–7 had materially breached the [Agreement] by filing a lawsuit against Old Navy, by failing to provide meaningful input on design processes and procedures, by failing to participate meaningfully in meetings with the Old Navy creative team and by otherwise failing to perform its obligations under the [Agreement]. Ex. 29. Old Navy did not provide L–7 with an opportunity to cure its alleged breaches. Prior to the February 20th Termination Letter, Old Navy had voiced no complaints about Oldham's performance under the Agreement; instead, he was continuously praised. PROCEDURAL HISTORY L–7 filed its first complaint in the District Court on February 18, 2009, under seal. On April 17, 2009, L–7 filed under seal the amended Complaint at issue in this appeal, adding claims for (I) wrongful termination and (II) trade disparagement to its claims for (III) breach of contract, (IV) breach of the implied covenant of good faith and fair dealing, and (V) fraud. Old Navy filed its Answer and Counterclaims on May 1, 2009, and L–7 filed a Reply on May 8, 2009. Old Navy's motion for judgment on the pleadings was fully submitted on August 21, 2009. On September 9, 2009, the District Court stayed depositions and ruled that “a new discovery cut-off will be set after the pending [Rule 12(c) ] motion is decided.” Special Appendix to L–7 Appellate Brief (“L–7 App. Brief”) at 66. In an opinion dated January 19, 2010, it granted Old Navy's motion, dismissing L–7's Complaint with prejudice. It issued a slightly amended opinion on January 21, 2010. L–7 moved to amend the judgment and replead two weeks later. The District Court denied L–7's motion in an opinion dated February 16, 2010. I. Motion for Judgment on the Pleadings A. Count III: Breach of Contract for Failure to Negotiate in Good Faith The District Court first dismissed L–7's claim for breach of contract for Old Navy's failure to enter into the licensing agreement. 8 It nonetheless concluded that Section 5 of the SOW “undoubtedly did create [an] obligation on the part of the parties to negotiate a license agreement in good faith,” L–7 Designs, Inc. v. Old Navy, LLC, No. 09 Civ. 1432, 2010 WL 157494, at *8 (S.D.N.Y. Jan. 19, 2010). However, it found that the “record” of the “detailed documentation of the negotiations between *428 Old Navy and L–7 over the anticipated license agreement,” combined with the detailed allegations of the Complaint, “show, unequivocally, that L– 7's claim that Old Navy failed to negotiate in good faith is not plausible.” Id. First, based on the fact that “the parties exchanged numerous telephone calls and emails and, as L– 7 acknowledged, progress in the negotiations was made,” it concluded that Old Navy “negotiated for some ten months.” Id. Although “the parties seemed to reach an impasse and negotiations broke down” in the fall of 2008, “the parties resumed talks and met several times in December 2008 and January 2009” before L–7 rejected Old Navy's January Proposal. Id. Second, the District Court concluded that because “L–7 was making extraordinarily high demands,” it was “not surprising that Old Navy resisted these demands,” noting that at the agreed-upon five percent royalty rate “some $200 million in sales of Todd Oldham branded products would had to have been generated in one year to generate” even the reduced royalty request proposed by L–7 ($20 million over two years). Id. Third, L–7's only non-conclusory, specific “allegation” was “its assertion that Old Navy decided to ‘renege’ on its own January 8, 2009, proposal, and that this decision ‘is itself damning evidence of [Old Navy's] bad faith.’ ” Id. at *9 (quoting L–7's Memorandum of Law in Opposition to Old Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 76 of 107
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 Navy's Motion for Judgment on the Pleadings (“L–7 12(c) Opp.”) at 23). But, the District Court concluded, the emails attached to Old Navy's Counterclaims rendered this assertion “not plausible” because they showed that “L–7's purported acceptance of the January 8th proposal on February 2, 2009, clearly was not [ ] an acceptance of the proposal ‘in its entirety.’ ” Id. (quoting Compl. ¶ 61). Fourth, because “insisting on ‘terms to the point of impasse’ [is] not sufficient to show bad faith,” L–7 could not argue that “Old Navy's refusal to agree to a minimum guarantee [was] evidence of bad faith.” Id. (citing Venture Assocs. Corp. v. Zenith Data Sys. Corp., 96 F.3d 275, 279 (7th Cir.1996)). 9 B. Count I: Wrongful Termination The District Court also dismissed Count I—a request for declaratory judgment (1) that Old Navy failed to provide (i) written notice of its claims of breach or (ii) 30 days' opportunity to cure any claimed breach; (2) that the Termination Letter did not effect a termination of the Agreement; and (3) that Old Navy wrongfully terminated the Agreement in retaliation for L–7's lawsuit against it. The District Court offered three reasons why “the claim fails as a matter of law,” 2010 WL 157494, at *9. First, “Old Navy did provide written notice of termination.” Id. at *10 (citing the Termination Letter). Second, while acknowledging Old Navy's admission that it failed to provide a 30–day cure period, the District Court found that it was relieved of this obligation because, for two reasons, notice of cure would have been futile. Initially, the District Court reasoned, “[i]t is difficult to imagine that Oldham could perform [his] duties after he sued Old Navy.” Id. (citing Allbrand Discount Liquors, Inc. v. Times Square Stores Corp., 60 A.D.2d 568, 399 N.Y.S.2d 700, 701 (2d Dep't 1977), for the proposition that “when one party ‘will not live up to the contract, the aggrieved party is *429 relieved from the performance of futile acts' ”). In particular, Oldham could not very well continue to help Old Navy creatively, including with respect to public relations matters, while pursuing a lawsuit against Old Navy. ( [Agreement] § 1). Among other things, Oldham was supposed to, under the [Agreement], “[m]otivate, inspire, coach, and share vision, insight and passion with Old Navy's creative team,” and he was supposed to “[p]rovide input” to Old Navy's president and leadership team. (Id.). Id. Notice of breach would also have been futile, the District Court reasoned, because “[e]ven a withdrawal of the complaint—and it is highly unlikely that L–7 would have withdrawn the complaint if Old Navy had sent L–7 a notice to cure—would not have undone the harm caused by the public filing of a lawsuit against Old Navy.” Id. Third, Count I failed because “even assuming the failure to give a cure period was a breach, in the context here it surely was not a material one.” Id. After then dismissing Counts II and V of the Complaint for trade disparagement and fraud, the District Court granted Old Navy's motion for judgment on the pleadings and dismissed L–7's claims with prejudice. Judgment was entered in favor of Old Navy on January 21, 2010. II. Motion to Amend and Replead L–7 filed a motion to amend the judgment and replead on February 5, 2010 “based on information contained in documents produced by Old Navy following the close of briefing” on the Rule 12(c) motion. L–7 Motion to Amend and Replead at 1. The District Court denied the motion, reasoning that L–7 had already had “two bites at the apple, as it has already filed two complaints”; “the request is untimely, as L– 7 has had the documents for months” yet “never indicated a desire to amend its amended complaint prior to the granting of the motion for judgment on the pleadings”; and, because “the additional documents L–7 now seeks to rely on” would not change the District Court's conclusions, “the proposed amendment therefore would be futile.” L–7 Designs, Inc. v. Old Navy, LLC, No. 09 Civ. 1432, 2010 WL 532160, at *2 (S.D.N.Y. Feb. 16, 2010). L–7 filed a timely notice of appeal on February 17, 2010. DISCUSSION I. Motion for Judgment on the Pleadings A. Standard of Review [5] [6] We review de novo a district court's decision to grant a motion for judgment on the pleadings pursuant to Rule 12(c). See Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.2010). In deciding a Rule 12(c) motion, we “employ[ ] the Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 77 of 107
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 same ... standard applicable to dismissals pursuant to [Rule] 12(b)(6). Thus, we will accept all factual allegations in the [C]omplaint as true and draw all reasonable inferences in [Plaintiff's] favor.” Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir.2009) (quotation marks and citation omitted). 10 *430 In Ashcroft v. Iqbal, the Supreme Court set forth a “two-pronged approach” to evaluate the sufficiency of a complaint. 129 S.Ct. at 1949–50. “First, although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (quotation marks and alterations omitted). “Second, only a complaint that states a plausible claim for relief survives a motion to dismiss, and determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. (quotation marks and alteration omitted). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949 (quotation marks omitted). Plausibility thus depends on a host of considerations: the full factual picture presented by the complaint, the particular cause of action and its elements, and the existence of alternative explanations so obvious that they render plaintiff's inferences unreasonable. See id. at 1947–52. B. Counts II, IV, and V We affirm the District Court's dismissal of the trade disparagement and common law fraud claims substantially for the reasons articulated by the District Court. We also affirm dismissal of the claim for breach of the implied duty of good faith and fair dealing, but for a different reason. See infra note 18. C. Count III: Breach of Contract for Failure to Negotiate in Good Faith 1. Applicable Law [7] [8] Under New York law parties who enter into binding preliminary agreements, such as Section 5 of the SOW, “accept a mutual commitment to negotiate together in good faith in an effort to reach final agreement....” Teachers Ins. & Annuity Ass'n of Am. v. Tribune Co., 670 F.Supp. 491, 498 (S.D.N.Y.1987). These agreements do not commit the parties to reach their ultimate contractual objective; instead, such agreements create an “obligation to negotiate the open issues in good faith in an attempt to reach the ... objective within the agreed framework.” Adjustrite Sys., Inc. v. GAB Bus. Servs., Inc., 145 F.3d 543, 548 (2d Cir.1998) (quotation marks omitted). This obligation bars a party from “renouncing the deal, abandoning the negotiations, or insisting on conditions that do not conform to the preliminary agreement.” Tribune, 670 F.Supp. at 498. [9] “In effect, an agreement to agree buys a party an assurance that the transaction will falter only over a genuine disagreement, thus allowing a party strapped for time or money to go ahead with arrangements with a sufficient degree of confidence in the outcome.” P.A. Bergner & Co. v. Martinez, 823 F.Supp. 151, 156 (S.D.N.Y.1993); see also Penguin Grp. (USA) Inc. v. Steinbeck, No. 06 CV 2438, 2009 WL 857466, at *2 (S.D.N.Y. Mar. 31, 2009) (“The linchpin of negotiation is not that one side capitulates to the other, but that there is a good faith, honest, articulation of interests, positions, or understandings.”); *431 Venture Assocs. Corp., 96 F.3d at 278 (“The parties may want assurance that their investments in time and money and effort will not be wiped out by the other party's foot-dragging or change of heart or taking advantage of a vulnerable position created in the negotiation.”). “[T]he parties may abandon the transaction as long as they have made a good faith effort to close the deal and have not insisted on conditions that do not conform to the preliminary writing.” Adjustrite, 145 F.3d at 548. [10] To state a claim for breach of contract for failure to negotiate in good faith, a plaintiff must “allege the specific instances or acts that amounted to the breach”; “generalized allegations and grievances” will not suffice to survive a motion for judgment on the pleadings. U.S. ex rel. Smith v. New York Presbyterian Hosp., No. 06 Civ. 4056, 2007 WL 2142312, at *16 (S.D.N.Y. July 18, 2007); accord Prospect St. Ventures I, LLC v. Eclipsys Solutions Corp., 23 A.D.3d 213, 804 N.Y.S.2d 301, 302 (1st Dep't 2005). [11] Although lost profits are not available where no agreement is reached, see Goodstein Constr. Corp. v. City of New York, 80 N.Y.2d 366, 374, 590 N.Y.S.2d 425, 604 N.E.2d 1356 (1992), out-of-pocket costs incurred in the course of good faith partial performance are appropriate, see Arcadian Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 78 of 107
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 74 n. 2 (2d Cir.1989). 2. Application [12] L–7 stated a plausible claim that Old Navy breached its obligation to negotiate the license agreement in good faith. The three bases alleged for this claim were that Old Navy (1) “failed to participate in negotiations from April 2008 to December 15, 2008 and never provided a single substantive comment with respect to the draft license at any time in 2008,” L–7 12(c) Opp. at 5; 11 (2) made “repeated material representations that it would negotiate the terms of the license agreement in good faith,” which L–7 subsequently learned were “false,” Compl. ¶ 47; and (3) “proposed terms it knew to be in bad faith and economically unfair to [L– 7], believing they would be rejected, and then reneged when [L–7] did accept,” L–7 12(c) Opp. at 23. These are legally cognizable theories for breach of the duty to negotiate in good faith. Moreover, drawing all reasonable inferences in L– 7's favor, the non-conclusory allegations in L–7's Complaint, combined with the exhibits attached thereto, render each one plausible. 12 First, L–7 plausibly alleged that Old Navy—who in June of 2008 proposed postponing negotiations—was engaged in dilatory tactics from April 2008 until December 15, 2008, during which time it failed to provide any substantive comments on L–7's draft license agreement. The emails exchanged between Vayness (L–7) and Fahlbusch (Old Navy) from April 2008 until September 10, 2008—when Fahlbusch finally “recommend[ed]” that Vayness and Oldham work “directly with [Howe] in terms of the branded line,” Ex. 21—support *432 the plausible inference that Fahlbusch was repeatedly putting L–7 off for undisclosed or pretextual reasons (discussed further below). The mere exchange of telephone calls and emails—most of which were initiated by L–7 (according to L–7's exhibits) and some of which Old Navy did not respond to (according to L–7's uncontradicted allegations)—does not make the inference that “Old Navy negotiated for some ten months,” 2010 WL 157494, at *8, so obvious that L–7's opposing inference of dilatory tactics is rendered implausible. 13 Similarly, whether or not L–7 agreed to Old Navy's alleged request to postpone discussions in June of 2008—a question of fact left open by the pleadings 14 —that would not defeat L–7's allegations that Old Navy was engaged in dilatory tactics. “[A]ssuming the pleaded facts to be true and read[ing those facts] in [L–7's] favor,” Sepúlveda–Villarini v. Dep't of Educ. of Puerto Rico, 628 F.3d 25, 30 (1st Cir.2010) (Souter, J.), it suggests the converse—that L–7, eager to execute the licensing agreement on terms as favorable to it as possible, and trusting that its negotiating partner in good faith believed a postponement of discussions would be mutually advantageous, was negotiating in good faith. It is reasonable to infer that, once L–7 became suspicious of what it believed to be dilatory tactics on Old Navy's part, it took a firmer stance, clarifying that while Old Navy may have “thought that [Oldham] agreed to postpone the finalizing of an agreement,” the “idea of postponing immediate discussions” was merely “discussed,” and that the parties should work to ensure that the Agreement did not “become breached,” Ex. 22. [13] Second, L–7 plausibly alleged that, commencing in May 2008, Old Navy made repeated material representations that L–7 subsequently learned were false, such as Fahlbusch's (Old Navy's) assurances to Oldham that she was already working with Old Navy's legal team on the licensing agreement template, or her multiple promises to get back to L–7, which either never happened or only occurred after substantial delay. 15 L–7's Complaint also suggests that, instead of revealing “its true purpose, which was to avoid entering *433 into the license agreement as required under the [Agreement],” Compl. ¶ 121 (emphasis added), Old Navy advanced pretextual reasons for its decision to delay negotiations (economic conditions) and, ultimately, to cut off negotiations (L–7's insistence on minimum guaranteed royalties). See Teachers Ins. & Annuity Assoc. of Am. v. Butler, 626 F.Supp. 1229, 1233–34 (S.D.N.Y.1986) (upholding a finding of bad faith, after a six-day non-jury trial, where evidence suggested that defendant “deliberately intended” not to close on an agreement that was no longer “economically favorable” to it due to a decline in interest rates, “seiz[ing] on” other terms of the agreement “as a pretext for not going forward with” it at the eleventh hour). That Old Navy's “true purpose” was to avoid negotiating at all can be inferred from the fact that Old Navy informed L–7 (1) that it wished to postpone the signing of a license indefinitely, (2) that it could not make a commitment to any discussions, and, ultimately, (3) that it “could not follow through with the promised license,” Compl. ¶ 55. Moreover, L–7's Complaint and the exhibits attached thereto support the inference that Old Navy's purported reasons for withdrawing from negotiations—i.e., that minimum Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 79 of 107
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 guaranteed royalties were “inconsistent with [Old Navy's] business plans and practices,” Ex. 28—were pretextual. As of December 3, 2008, minimum guaranteed royalties were not one of the four “essential issues” on which “differences [had] emerged in the parties' positions” according to Old Navy, Ex. 26 (describing “the timing of [the] launch” as the “most important [ ]” issue); and assuming the truth of L–7's uncontradicted documentary evidence, none of the points that had “yet to be resolved” after the January 29th conference call —including minimum guaranteed royalties—“was left off as a deal breaker” to L–7, Ex. 28. [14] Third, L–7 plausibly alleged that Old Navy's January Proposal was designed to be “economically unfair” to L–7 so that L–7 would reject it, pointing to Old Navy's “reneging” on its offer when L–7 ultimately signaled—after several counteroffers—that it would accept the bulk of the January Proposal. See L–7 12(c) Opp. at 23. While the District Court concluded as a matter of law that L–7 did not “accept” Old Navy's January Proposal, we are inclined to see a fact question as to whether L–7 plausibly alleged that Old Navy's January Proposal was designed to elicit L–7's rejection. See Venture Assocs., 96 F.3d at 280 (business owner would be acting in bad faith if its purpose in demanding more than prospective buyer would pay “was to induce [prospective buyer] to back out of the deal”). Whether or not L–7 “rejected key terms of Old Navy's” January Proposal or “made a series of counter-demands” before attempting to resurrect it, 2010 WL 157494, at * 9, 16 the well-pled fact remains that, when L–7 finally acquiesced to Old Navy's insistence on no minimum guaranteed royalties and appeared willing to accept an offer substantially on Old Navy's terms, Old Navy balked. In light of the (1) documentary evidence that Old Navy's first proposal for the Branded Line did not come until January of 2009, after the intervention of outside counsel; (2) allegations that Old Navy's sluggish negotiations from December 15, 2008 to February 6, 2009 were a “sham,” Compl. ¶ 124; (3) documentary evidence that L–7 was slowly retreating *434 from and ultimately abandoned its insistence on minimum guaranteed royalties, a supposed sticking point for Old Navy; and (4) allegations that, under new management and in a deteriorating retail environment, Old Navy had decided it did not want to close any deal with Oldham, the Complaint raised the plausible inference that Old Navy's January Proposal was designed to elicit L–7's rejection. For all of these reasons, L– 7 stated a claim for breach of contract for failure to negotiate in good faith. 17 D. Count I: Wrongful Termination [15] L–7 stated a claim for declaratory judgment for all three prongs of Count I. First, L–7 stated a claim for declaratory judgment that Old Navy failed to comply with the notice and cure provisions of the Agreement. Before either party could terminate the Agreement, section 5 required (1) notice of a material breach, (2) 30 days' opportunity to cure, (3) failure to cure the material breach, and (4) notice of termination. See Agreement § 5. But Old Navy's Termination Letter provided only notice of termination—effective immediately—without providing L–7 with notice of its alleged breaches and 30 days' opportunity to cure. Old Navy conceded as much in its motion for judgment on the pleadings. See Old Navy's Memorandum of Law in Support of Motion for Judgment on the Pleadings at 23. Therefore, this claim should have survived. Second, for the same reasons, L–7's claim for declaratory judgment that the Termination letter did not effect a termination of the Agreement should have survived. Third, L–7 stated a claim for declaratory judgment that Old Navy wrongfully terminated the Agreement. Old Navy notified L–7 that it had “materially breached the [Agreement] by [ (1) ] filing a lawsuit against Old Navy” and (2) by failing to satisfy certain unspecified performance obligations. Ex. 29. “[B]ringing suit to determine the meaning of an agreement is not a breach of that agreement absent some explicit contractual provision that the party will not bring suit.” Prudential Equity Grp., LLC v. Ajamie, 538 F.Supp.2d 605, 611–12 (S.D.N.Y.2008). Moreover, as L–7 explained to the District Court, “none of the vague, unspecified issues mentioned in the Termination Letter had been previously raised with L–7.... To the contrary, Mr. Oldham had been repeatedly and widely praised by Gap and Old Navy executives and staff throughout his Old Navy tenure.” L– 7 App. Brief at 50 (citing multiple allegations in, and documentary evidence supporting, the Complaint). Old Navy made no argument, and pointed to no evidence, contradicting these well-pled facts. Therefore, accepting L–7's allegations as true and drawing every inference in its favor, L–7 plausibly alleged that it was in compliance with the Agreement, which was therefore wrongfully terminated. The District Court dismissed Count I upon its determination that Old Navy had no duty to provide L–7 with an opportunity to cure because such cure would have been futile. (Of course, if the alleged grounds for L–7's termination did not Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 80 of 107
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 constitute breach or material breach, then it is irrelevant whether L–7 could have *435 “cured.”) Thus, the District Court concluded that Oldham was unlikely to have been able to “perform [his] duties after he sued Old Navy” and unlikely to have withdrawn his complaint if Old Navy had sent a notice of breach. But this appears to be speculative. That conclusion, and the conclusion that withdrawal of the complaint could not have “undone the harm caused by the public filing of a lawsuit against Old Navy,” 2010 WL 157494, at *10 (emphasis added), rests on the public nature of the litigation. However, it is undisputed that both of L–7's complaints were filed under seal. For all of these reasons, Count I survives Old Navy's 12(c) motion as a matter of law. II. Motion to Amend the Judgment and Replead [16] [17] We generally review motions for reconsideration under an “abuse of discretion” standard. See Devlin v. Transp. Commc'n Int'l Union, 175 F.3d 121, 131–32 (2d Cir.1999). However, a denial of leave to amend that is based on a legal interpretation, such as for futility, is reviewed de novo. See Gorman v. Consol. Edison Corp., 488 F.3d 586, 592 (2d Cir.2007); Littlejohn v. Artuz, 271 F.3d 360, 362 (2d Cir.2001). The District Court erred in denying L–7's motion for leave to replead its bad faith negotiation claim based on futility. 18 However, in light of our finding that Count III stated a claim for relief, this error was harmless because that Count of L–7's April 17, 2009 Complaint is reinstated. CONCLUSION For the foregoing reasons, we affirm in part and vacate in part the District Court's judgment, and we remand for further proceedings; in so doing we reverse in part the order of the District Court that dismissed the Complaint and reinstate Count I and Count III (on the three bases discussed in this Opinion). All Citations 647 F.3d 419 Footnotes * The Honorable Shira A. Scheindlin, of the United States District Court for the Southern District of New York, sitting by designation. 1 We set forth the pleadings in great detail to demonstrate the unusual amount of material the District Court had before it on this 12(c) motion. 2 All exhibits cited herein are exhibits to the Complaint unless otherwise noted. 3 For example, Oldham entered into a licensing agreement with Mattel, Inc. for a special collector's edition of a Barbie doll. 4 By its terms, the Agreement is governed by New York law. 5 The Complaint alleges that Howe, Old Navy's then-executive vice president, expressed this to L–7. See Compl. ¶ 52. An October 7, 2008 email from Vayness (L–7) to Wyatt, however, indicates that Wyatt made the statement. See Ex. 23. 6 L–7's Complaint and exhibits attached thereto largely omit reference to the parties' January 2009 discussions. The “facts” set forth below are primarily drawn from the five email exhibits to Old Navy's Counterclaims. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 81 of 107
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 7 Citing this email, L–7 alleges in the Complaint that “[o]n February 2, 2009, L–7 ... accepted Old Navy's January 8, 2009 proposal in its entirety.” Compl. ¶ 61. As the text of the email makes clear, however, this was not quite so. 8 We affirm this portion of the District Court's dismissal of Count III. 9 The District Court then concluded that, because Count IV (breach of the implied duty of good faith and fair dealing) was “essentially identical” to Count III “as both are based on the allegation that Old Navy failed to negotiate a license agreement in good faith,” Count IV failed to state a claim “[f] or the [same] reasons.” 2010 WL 157494, at *9. 10 We note that, as plaintiffs carefully heed the admonition to support “legal conclusions” with factual allegations —lest they be deemed “conclusory” and therefore denied a presumption of truthfulness, Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009)—trial judges, and appellate judges who review their determinations, are constantly faced with the task of evaluating competing inferences to be drawn from those facts. In this sense, Iqbal and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 586, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), have rendered even more important (and more difficult) both trial judges' adherence to the most fundamental pleading principles—namely, accepting as true all factual allegations and drawing all reasonable inferences from those facts in plaintiffs' favor—and appellate judges' subsequent de novo review of the decisions of the district courts. 11 See also L–7 12(c) Opp. at 23 (Old Navy “fail[ed] to engage [L–7] in negotiations on the license with [L–7] for more than one year.”). 12 Citing Adjustrite, 145 F.3d at 548, Defendant argues that the District Court could find, as a matter of law based on Old Navy's proposal of terms “consistent with” Section 5 of the SOW, that it negotiated in good faith. However, the only term specified in the September 2007 agreement with which Old Navy's proposal could have “conform [ed]” was the five percent royalty fee. That the January Proposal included this royalty provision does not establish as a legal matter that it acted in good faith, especially in light of L–7's well-pled allegations that the January negotiations were designed to induce L–7's rejection. 13 Nor is the inference that “progress in the negotiations was made,” 2010 WL 157494, at *8, so obvious from L–7's June 12th email that “things are proceeding in the right direction with the branded line” that L–7's reasonable, opposing inference must be discredited. Drawing all reasonable inferences in L–7's favor, and taking into account its allegations that Old Navy was stalling, the June 12th email suggests that L–7, frustrated with Old Navy's non-responsiveness, was politely encouraging Old Navy to entertain L–7's proposals, while communicating its view that the parties still had a long way to go. 14 In the “Facts” section of its opinion, the District Court stated that “Old Navy wanted to postpone the launch [of the Branded Line] and L–7 was prepared to do so, from October 1, 2008, to February 1, 2009.” 2010 WL 157494, at *2. However, in making this factual determination, it cited a draft email from Vayness (L–7) to Howe (Old Navy) on Oldham's behalf. See Ex. 22 (entitled “2nd draft email to [Howe]”). The email Vayness (L–7) actually sent states only his “underst[anding]” that Howe “thought that [Oldham] had agreed to postpone the finalizing of an agreement.” Id. (emphasis added). The draft email written by Oldham's representative about a June meeting for which he (the representative) was not present and where “the idea of postponing the discussion ... was discussed” does not establish, at the motion for judgment on the pleadings stage, that “L–7 was prepared” to postpone the launch of the Branded Line by four months, 2010 WL 157494, at *2. 15 A reasonable inference to draw from Old Navy's lack of communication and failure to supply counter- proposals or comments—on a draft license agreement that Old Navy's legal team was supposedly “already working” on as early as May 2008—is that Fahlbusch's (Old Navy's) representation was false. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 82 of 107
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 16 The District Court concluded that L–7's requests for minimum guaranteed royalties constituted “extraordinarily high demands” to which Old Navy's resistance was “not surprising,” 2010 WL 157494, at *8. But L–7 argues, and we are inclined to agree, that this factual determination was made without the benefit of discovery or expert testimony. 17 Because L–7's claim for breach of the implied covenant of good faith and fair dealing (Count IV) is based on the same facts as its claim for breach of contract, it should have been dismissed as redundant. See Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 81 (2d Cir.2002); Fasolino Foods Co. v. Banca Nazionale del Lavoro, 961 F.2d 1052, 1056 (2d Cir.1992) (“[B]reach of [the duty of good faith and fair dealing] is merely a breach of the underlying contract.”). 18 We affirm the District Court's denial of L–7's motion for leave to replead trade disparagement and fraud. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 83 of 107
Nason v. Franklin County, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2026 WL 759440 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Bonnie NASON, as Administrator of the Estate of Alisha Patricia Nason, Plaintiff, v. FRANKLIN COUNTY, Franklin County Sheriff's Department, Glenn Schroyer, Md, Lisa Clark, Rn, and John/Jane Does 1-3, Defendants. 9:25-cv-435 (ECC/CBF) | Signed March 18, 2026 Attorneys and Law Firms Rob Rickner, Esq., for Plaintiff Stephen M. Groudine, Esq., for Defendants MEMORANDUM-DECISION AND ORDER Elizabeth C. Coombe, United States District Judge *1 Plaintiff Bonnie Nason, as administrator of the Estate of Alisha Patricia Nason (Nason), began this action by filing a Complaint against Defendants Franklin County (County), the Franklin County Sheriff's Department (Sheriff's Department), Glenn Schroyer, 1 Lisa Clark, and three unidentified individuals on April 4, 2025. Complaint (Compl.), Dkt. No. 1. The Complaint alleges violations of the Fourth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 and New York state law in connection with Nason's death while detained in the Franklin County Jail. Presently before the Court is a motion to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b) (1) and 12(b)(6) filed by the named defendants (Defendants). Dkt. No. 7. The motion is fully briefed. See Dkt. Nos. 7-9, 12, 13. For the following reasons, the motion to dismiss is granted in part and denied in part. I. FACTS AND PROCEDURAL HISTORY 2 On December 27, 2023, Nason 3 “was first incarcerated in the Franklin County Jail.” Compl. ¶ 16. “Nason suffered from opiate addiction and had been receiving methadone to manage the illness.” Id. Defendants Glenn Schroyer, MD and Lisa Clark, RN provided medical care at the jail. Id. at ¶¶ 13, 14. On approximately January 4, 2024, Defendant Schroyer prescribed “Sublocade in place of methadone” for Plaintiff. Compl. ¶ 17. “Sublocade is an opiate addiction management medication that only requires an injection every 30 days” and “releases buprenorphine slowly over time.” Id. at ¶ 18. “Sublocade has a Food and Drug Administration (‘FDA’) required Risk Evaluation and Mitigation Strategy (‘REMS’).” Id. at ¶ 20. “A REMS is a strategy to manage known or potential risks associated with a drug and is required by the FDA to ensure the benefits of the drug outweigh its risks.” Id. “Sublocade is administered monthly only by subcutaneous injection in the abdominal region by a healthcare provider and is only available through a restricted distribution called the Sublocade REMS.” Id. “Sublocade operates by creating a mass in the injection site.” Compl. ¶ 22. “It must be injected subcutaneously into the patient's abdomen.” Id. “There, the medication forms a solid mass that dissolves over time.” Id. “The training to administer Sublocade comes with multiple stark warnings.” Id. at ¶ 23. “If it is injected intramuscularly, it dissolves faster than it should, causing an overdose.” Id. “If injected intravenously, or allowed to otherwise leak into the bloodstream, the medication becomes clots that can cause numerous problems, like pulmonary embolisms.” Id. Those “trained to administer Sublocade learn[†] one lesson, repeatedly: Sublocade is administered monthly only by subcutaneous injection in the abdominal region.” Id. at ¶ 24. “An injection anywhere else carries a serious risk of death.” Id. After “Sublocade is administered, particularly for the first time, the patient must be monitored carefully for signs of respiratory distress, overdose, and other serious symptoms.” Id. at ¶ 25. “The manufacturer encourages Narcan prescriptions along with Sublocade, so that an overdosing patient can save themselves in the event the medication dissolves too quickly.” Id. *2 “On January 6, 2024, at 10:35 a.m., Nurse Clark gave ... Nason a 300mg injection of Sublocade intramuscularly,” and not “subcutaneously in the abdomen,” creating “an immediate danger of death by overdose and embolisms from blood clots.” Compl. ¶ 26. “Nason was then left without any medical staff to monitor him, and without Narcan.” Id. at ¶ 27. “By the evening, he started feeling sick and demonstrating obvious signs of overdose, and he asked for medical help repeatedly, but his requests were ignored, either because there was no medical staff, or because the correction officers did not want Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 84 of 107
Nason v. Franklin County, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 to get” him help. Id. at ¶ 28. “The Sublocade was dissolving too quickly, giving him 30 days of medication all at once.” Id. at ¶ 29. “Nason died within 24 hours of receiving the Sublocade injection.” Id. at ¶ 30. “Nason died from lethal levels of buprenorphine, the active ingredient in Sublocade, and from fluid collecting in his lungs.” Id. at ¶ 29. On April 2, 2024, Plaintiff, as proposed administrator of Nason's estate, served the County with a notice of claim for injuries that “includ[ed] physical and emotional pain and suffering before death, wrongful death, loss of enjoyment of life, and economic damages.” 4 Dkt. No. 7-2 at 1, 2. 5 On December 23, 2024, the Franklin County Surrogate's Court filed a decree granting letters of administration with limitations to Plaintiff as administrator of Nason's estate, “limited to the prosecution and defense of the cause of action set forth in the petition.” Dkt. No. 7-8 at 1. The petition included a “[l]awsuit against state of NY for wrongful death.” 6 Id. at 3. On March 19, 2025, Plaintiff, as “Administrator” of Nason's estate, served an “amended notice of claim” on Franklin County. Dkt. No. 7-6 at 1. On October 2, 2025, more than two months after Defendants filed their motion to dismiss, the Surrogate's Court filed an amended decree granting letters of administration to Plaintiff as Administrator of Nason's estate, “limited to the prosecution and defense of the cause of action set forth in the petition.” Dkt. No. 12-2 at 1. The attached petition included a “[l]awsuit against County of Franklin for causes of action, inter alia, medical negligence, negligent hiring, wrongful death, violations of the United States Constitution and New York State Constitution, and, to the extent necessary, fil[ing] a late notice of claim.” Dkt. No. 12-2 at 3. II. LEGAL STANDARD “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P. 12(b)(1)). “In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint ... as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (citation omitted). A court may also “refer to evidence outside the pleadings” and “take judicial notice of documents in the public record, including state court filings.” Krajisnik Soccer Club, Inc. v. Krajisnik Football Club, Inc., No. 20-cv-1140 (LEK/TWD), 2021 WL 2142924, at *2 (N.D.N.Y. May 26, 2021) (quoting Makarova, 201 F.3d at 113 and Windward Bora, LLC v. Bank of N.Y. Mellon, No. 19-cv-858, 2020 WL 7042761, at *2 (E.D.N.Y. Nov. 30, 2020)). *3 To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “a complaint must provide ‘enough facts to state a claim to relief that is plausible on its face.’ ” Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Although a complaint need not contain detailed factual allegations, it may not rest on mere labels, conclusions, or a formulaic recitation of the elements of the cause of action, and the factual allegations ‘must be enough to raise a right to relief above the speculative level.’ ” Lawtone-Bowles v. City of New York, No. 16-cv-4240, 2017 WL 4250513, at *2 (S.D.N.Y. Sept. 22, 2017) (quoting Twombly, 550 U.S. at 555). A court must accept as true all well-pled factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014) (citing ATSI Comm'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). III. DISCUSSION The Complaint asserts two federal claims under 42 U.S.C. § 1983 against Defendants: (1) deprivation of due process under the Fourteenth Amendment, Compl. at ¶¶ 34–40 and (2) failure to intervene and conspiracy to deprive Nason of his rights, id. at ¶¶ 41–46. The Complaint also asserts three claims under New York law: (1) medical negligence against all Defendants except the Sheriff's Department, id. at ¶¶ 47– 51; (2) negligent hiring, screening, retention, supervision, and training against the County and the Sheriff's Department, id. at ¶¶ 52–23; and (3) deprivation of due process under the New York State Constitution against all Defendants, id. at ¶¶ 54– 57. A. Jurisdiction Defendants move to dismiss for lack of subject matter jurisdiction because (1) Plaintiff was not the duly appointed administrator of Nason's estate when she filed the Complaint, Defendants’ Memorandum of Law (Def. Mem.) at 10–11, Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 85 of 107
Nason v. Franklin County, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 Dkt. No. 7-9, and (2) regarding the state law claims, Plaintiff did not comply with New York's notice of claim requirements for suits against municipalities, 7 id. at 8–10. Plaintiff responds that (1) although “the letters of administration had a technical defect,” that defect has been corrected, and at most, that defect affects capacity to sue, a non-jurisdictional requirement, Plaintiff's Memorandum of Law (Pl. Mem.) at 14–15, Dkt. No. 12, and (2) the New York State Court of Appeals has plainly decided that next of kin may serve notices of claim, id. at 11. 1. Notice of Claim Defendants argue that Plaintiff did not comply with New York County Law § 52 and New York General Municipal Law § 50-e because she was only a proposed administrator of Nason's estate when she first served the County with a notice of claim, and although she was the administrator of Nason's estate when she served the amended notice of claim, her authority was limited to a suit against New York State. Def. Mem. 8–10. According to Defendants, “a notice of claim alleging wrongful death may only be filed after ‘the appointment of a representative of the decedent's estate.’ ” Id. at 9 (quoting New York General Municipal Law § 50-e). Plaintiff responds that the New York State Court of Appeals decided this issue in Winbush v. City of Mount Vernon, 306 N.Y. 327 (1954), and next of kin may serve a notice of claim on municipalities in wrongful death actions before appointment as an administrator. Pl. Mem. 11–12. Defendants reply that “[c]ourts in New York State, well after” Winbush “have repeatedly and recently held that a proposed administrator does not have the legal capacity to act on behalf of an estate” for notice of claim purposes, citing decisions from Orange and Nassau County Courts. Defendants’ Reply Memorandum of Law (Def. Reply) at 4, Dkt. No. 13. *4 New York County Law § 52 states: “[a]ny claim or notice of claim against a county for ... injury or death ... alleged to have been caused or sustained in whole or in part by or because of any misfeasance, omission of duty, negligence or wrongful act on the part of the county, its officers, agents, servants or employees, must be made and served in compliance with [New York General Municipal Law § 50-e].” New York General Municipal Law § 50-e states: “[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation ... or any officer, appointee or employee thereof, the notice of claim shall ... be served in accordance with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent's estate.” “The primary purpose of [New York General Municipal Law § 50-e], as often stated by the courts, is to give to a municipality prompt notice of ... claims, so that investigation may be made before it is too late for investigation to be efficient.” Winbush, 306 N.Y. at 333. “While no one except an administrator or executor may bring a death action, there is no reason, in statute or in reason, why a person, who is one of the next of kin to be benefited by a death action, may not file a notice of claim....” Id. at 334; see Cook v. Maine-Endwell Cent. Sch. Dist., 236 A.D.3d 1167, 1171 n.3 (3d Dep't 2025) (noting that “it has long been established that the next of kin —and even a nonrelative friend—may file and serve a timely notice of claim”) (citing Winbush, 306 N.Y. at 330–34). Here, Plaintiff served the County with a notice of claim on April 2, 2024, and that was less than 90 days after Nason's death. See Dkt. No. 7-2 at 1. Plaintiff later served the County with an amended notice of claim on March 19, 2025, and that was less than 90 days after she was appointed administrator of Nason's estate. See Dkt. No. 7-6 at 1. Both of the notices of claim were acceptable because Plaintiff was Nason's next of kin and served notice within the time period prescribed by New York General Municipal Law § 50-e. Defendants do not dispute that Plaintiff complied with the notice requirements except that she served the first notice when she was merely the proposed administrator, and she served the second notice when she was the administrator, but her authority was for a suit against New York State. As a result, the gist of their argument appears to be that they received notice too early. Def. Mem. at 9 (“notice of claim alleging wrongful death may only be filed after ‘the appointment of a representative of the decedent's estate’ ”). But “there is no reason, in statute or in reason” why next of kin may not serve the notice of claim before appointment as the administrator. Winbush, 306 N.Y. at 334. The New York State Court of Appeals has never overruled Winbush, and the Third Department Appellate Division cited it favorably last year. See Cook, 236 A.D.3d at 1171 n.3. That clear statement of law is binding on this Court. 10012 Holdings, Inc. v. Sentinel Ins. Co., Ltd., 21 F.4th 216, 221 (2d Cir. 2021) (“In construing New York law, we are ‘bound ... by the law of New York as interpreted by the New York Court of Appeals....’ ”) (quoting Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 86 of 107
Nason v. Franklin County, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 739 F.3d 45, 48 (2d Cir. 2013)). The decisions from lower New York courts cited by Defendants do not affect this. Accordingly, Plaintiff's motion is denied on this basis. 2. Authority to Bring Suit Defendants argue that only “the decedent's duly appointed personal representative” may bring wrongful death suits in New York, and that Plaintiff “does not have the legal authority or standing to bring this cause of action,” because when the complaint was filed, Plaintiff was not yet the duly appointed administrator of Nason's estate and “the state of NY” is not a defendant. Def. Mem. at 10–11. Plaintiff admits that the letters of administration appointing her administrator “had a technical defect,” but argues that defect was corrected. Def. Mem. at 15. Plaintiff also responds that even if she were not the duly appointed administrator, this would affect only capacity to sue and that is a non-jurisdictional issue that could be cured by substitution. Def. Mem. at 14–15. *5 Standing and capacity to sue are “distinct concepts.” Fletcher v. City of New London, No. 3:16-cv-241, 2017 WL 690533, at *3 (D. Conn. Feb. 21, 2017). Standing is jurisdictional and requires the plaintiff to “have suffered an ‘injury in fact’ that is ‘fairly traceable to the challenged action of the defendant’ and ‘it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.’ ” Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). “[S]tanding in federal court is a question of federal law, not state law,” and “no matter its reasons,” the fact that a state “thinks that a private party should” or should not have standing “cannot override [federal] settled law to the contrary.” Hollingsworth v. Perry, 570 U.S. 693, 715 (2013). On the other hand, capacity to sue, “involves a party's personal right to litigate in federal court.” Fletcher, 2017 WL 690533, at *3. Unlike jurisdictional issues including standing, that “can be raised at any time, lack of capacity must be raised ‘by a specific denial, which must state any supporting facts that are peculiarly within the party's knowledge.’ ” Id. (quoting Fed. R. Civ. P. 9(a)). Moreover, “[l]ack of capacity is generally not considered jurisdictional and is therefore waived if not specifically raised.” E.R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 936 (2d Cir. 1998). Capacity to sue for a representational plaintiff like Plaintiff, is determined “by the law of the state where the court is located.” Fed. R. Civ. P. 17(b)(3). New York law therefore applies here. See DuBois v. Beaury, No. 1:20-cv-86 (FJS/CFH), 2020 WL 7024393, at *1 (N.D.N.Y. Nov. 30, 2020) (applying New York law pursuant to Fed. R. Civ. P. 17(b)(3)). In New York, for wrongful death actions, “[t]he personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death against a person who would have been liable to the decedent.” N.Y. Est. Powers & Trusts Law § 5-4.1(l). A “personal representative” is “a person who has received letters to administer the estate of a decedent.” N.Y. Est. Powers & Trusts Law § 1-2.13. “The Court of Appeals has instructed, repeatedly, that [New York's wrongful death] statute must be construed ‘strictly.’ ” In re September 11 Litig., 760 F. Supp. 2d 433, 443 (S.D.N.Y. 2011) (collecting cases). When Plaintiff filed the Complaint, she had standing to sue because she sought damages for an “injury in fact,” that is Nason's death, and she alleged that the injury was “fairly traceable” to actions taken by the Defendants. See Fletcher, 2017 WL 690533, at *6 (explaining that “while the Estate lacked capacity and was not the real party in interest, it did have standing” to sue for wrongful death); see also id. at *4 (stating that it was “incorrect” to “equate [a] lack of capacity with a lack of standing and subject matter jurisdiction,” and refusing to dismiss the complaint filed by the pro se plaintiff for initial lack of capacity); Purcell ex rel. Est. of Tyree v. City of New York, No. 18-cv-3979, 2020 WL 2559796, at *6– 7 (E.D.N.Y. May 19, 2020) (rejecting argument “equat[ing] Plaintiff's lack of a capacity with a lack of standing, which would trigger a jurisdictional defect”). Nonetheless, New York law is clear that only a duly appointed personal representative of the decedent's estate may bring a wrongful death action. Carrick v. Cent. Gen. Hosp., 51 N.Y.2d 242, 250 n.2 (1980) (“It is well established that the existence of a qualified administrator is essential to the maintenance of the action and that the statutory right to recover for wrongful death does not even arise until an administrator has been named through the issuance of letters of administration.”) (citation omitted). When Plaintiff filed the Complaint, she did not have the capacity to sue because she had received letters of administration, but they were limited to a wrongful death suit against New York State. Plaintiff did not become a qualified administrator and duly appointed representative Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 87 of 107
Nason v. Franklin County, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 until the Surrogate Court issued her the amended letters of administration on October 2, 2025. *6 The proper remedy is to allow Plaintiff to substitute herself in her capacity as the duly appointed representative of Nason's estate by amending the Complaint. “A Rule 17(a) substitution of plaintiffs should be liberally allowed when the change is merely formal and in no way alters the original complaint's factual allegations as to the events or participants.” Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20 (2d Cir. 1997). The Second Circuit allowed amendment where: First, “[t]he complaint's only pertinent flaw was the identity of the party pursuing those claims.” In other words, the proposed amended complaint sought only to substitute one name for another; the factual and legal allegations of the complaint would remain unaltered. Second, there was no indication of “bad faith or ... an effort to deceive or prejudice the defendants.” Finally, the proposed substitution did not threaten to prejudice the defendants, who had timely notice of the substance of the allegations, the relevant parties, and their claims. Cortlandt St. Recovery Corp. v. Hellas Telecommunications, S.a.r.l, 790 F.3d 411, 422 (2d Cir. 2015) (quoting Advanced Magnetics, 106 F.3d at 20–21) (citations omitted). Those requirements are all present here. Plaintiff is therefore directed to amend the complaint within 30 days to substitute herself in her capacity as the duly appointed representative of Nason's estate, and the Defendants’ motion to dismiss is denied on this basis. B. Merits 1. Uncontested Claims Plaintiff does not contest the dismissal of all claims against the Sheriff's Department because it is an administrative arm of the County. Pl. Mem. at 22; see Arrotta v. Ulster Cnty. Sheriffs Dep't/Emps., No. 22-cv-638 (GLS/TWD), 2022 WL 4235463, at *5 (N.D.N.Y. Sept. 14, 2022) (“[U]nder New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and, therefore, cannot sue or be sued.”) (alteration in original) (quotation and citation omitted). Defendants’ motion is therefore granted on this basis, and all claims against the Sheriff's Department are dismissed. Plaintiff also does not contest the dismissal of the § 1983 claims against Schroyer and the unidentified defendants. Pl. Mem. at 22. Defendants’ motion is therefore granted on this basis, and the § 1983 claims against Schroyer and the unidentified defendants are dismissed. Further, the Plaintiff does not contest the dismissal of the § 1983 failure to intervene and conspiracy claim against all Defendants, Pl. Mem. at 22, and that claim is dismissed against all Defendants. Finally, Plaintiff does not contest dismissal of the state law claim for negligent hiring, screening, retention, supervision, and training against the County and the Sheriff's Department, Pl. Mem. at 22, and that claim is dismissed. 2. § 1983 Due Process – Deliberate Indifference a. Individual Liability Defendants seek dismissal of Plaintiff's § 1983 claim against Clark arguing that she did not sufficiently plead subjective intent, the allegations “reflect at most negligent conduct,” and she cannot establish deliberate indifference. Def. Mem. at 12. Plaintiff responds that Defendants do not accurately state the deliberate indifference requirements and that the allegations in the Complaint demonstrate at least reckless conduct. Pl. Mem. at 16–17. A Fourteenth Amendment due process claim relying on deliberate indifference to the medical needs of a pretrial detainee “must meet two requirements: (1) that [the detainee] had a serious medical need ... and (2) that [the defendants] acted with deliberate indifference to such need[†].” Charles v. Orange Cnty., 925 F.3d 73, 86 (2d Cir. 2019) (citing Estelle v. Gamble, 429 U.S. 97, 105 (1976)). *7 “[D]eliberate indifference ... can be shown by something akin to recklessness, and does not require proof of a malicious or callous state of mind.” Charles, 925 F.3d at 86 (citing Darnell v. Pineiro, 849 F.3d 17, 33–34 (2017)). “Deliberate indifference ... can be established by either a subjective or objective standard....” Id. at 87. “A plaintiff can prove deliberate indifference by showing that the defendant official ‘recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to [the plaintiff's] health or safety.’ ” Id. (alteration in original) (quoting Darnell, 849 F.3d at 35). In the context of pretrial detention, a plaintiff “can allege either that the defendants knew that failing to provide the complained Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 88 of 107
Nason v. Franklin County, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 of medical treatment would pose a substantial risk to [the detainee's] health or that the defendants should have known that failing to provide the omitted medical treatment would pose a substantial risk to the detainee's health.” Id. Nonetheless, a “plaintiff must show ‘something more than mere negligence’ to establish deliberate indifference in the Fourteenth Amendment context.” Id. (quoting Wyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996)). “Thus, ‘mere medical malpractice is not tantamount to deliberate indifference, but it may rise to the level of deliberate indifference when it involves culpable recklessness, i.e., an act or a failure to act ... that evinces a conscious disregard of a substantial risk of serious harm.’ ” Id. (quoting Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000)). Whether a defendant “knew or should have known of the substantial risk of harm to the detainee is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.” Id. Here, Plaintiff has alleged a deliberate indifference claim against Clark. According to the Complaint, Nason was a pretrial detainee with a serious medical need, that is to have his opiate addiction managed with Sublocade in a safe manner. The Complaint also adequately alleges that Clark was deliberately indifferent to that need by alleging that (1) the FDA has a risk mitigation strategy for Sublocade, (2) training to administer Sublocade includes “stark warnings,” (3) Clark failed to heed the warnings, (4) Clark administered Sublocade improperly, and (5) Clark failed to monitor or treat Nason, resulting in his death. Compl. ¶¶ 20, 23– 25, 37. Viewing the allegations as true and drawing all reasonable inferences in Plaintiff's favor as required at this stage of the litigation, these allegations are sufficient to allege “culpable recklessness” demonstrating deliberate indifference. Accordingly, Defendants’ motion to dismiss is denied as to Clark on the § 1983 deliberate indifference claim. b. Municipal Liability Defendants argue that the Complaint does not allege facts sufficient to support § 1983 liability for the County under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). Def. Mem. at 20–21. Plaintiff responds that the Complaint adequately alleges Monell liability based on a failure-to-train theory. Pl. Mem. at 18–19. “To hold a [municipality] liable under § 1983, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020) (alteration in original) (quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) and citing Monell, 436 U.S. at 690–91). “To establish a municipal policy, practice, or custom, a plaintiff must provide evidence of (1) a formal policy endorsed by the municipality; (2) actions taken or decisions made by the municipality's policymakers, which caused the alleged civil rights violation; (3) a practice so widespread that it constitutes ‘a custom or usage;’ or (4) a failure by the municipality's policymakers to properly train or supervise their subordinates.” Beckwith v. City of Syracuse, 642 F. Supp. 3d 283, 292–93 (N.D.N.Y. 2022) (citing Green v. City of New York, 465 F.3d 65, 80–82 (2d Cir. 2006)). A “pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Connick v. Thompson, 563 U.S. 51, 62 (2011) (quoting Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 409 (1997)). The Supreme Court has, however, “left open the possibility that, ‘in a narrow range of circumstances,” a pattern of similar violations might not be necessary to show deliberate indifference.” Id. at 63 (quoting Bryan Cnty., 520 U.S. at 409). In other words, the “Court sought not to foreclose the possibility, however rare, that the unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of violations.” Id. *8 As an initial matter, the requirements articulated in Connick apply to motions to dismiss. See Simms v. City of New York, 480 F. App'x 627, 630–31 (2d Cir. 2012) (affirming district court's decision to dismiss complaint and applying Connick's requirements). Applying Connick here, the Complaint does not sufficiently allege Monell liability under a failure-to-train theory. The Complaint does not allege any prior incidents of improper Sublocade administration resulting in death or serious injury at the Franklin County Jail. In addition, the Complaint's allegations do not fall into the “narrow range of circumstances” where failure- to-train liability can result from a single incident because the Complaint does not allege, for example, that detainees regularly receive Sublocade or that death or serious injury is a highly predictable result of that medication. See Connick, 563 U.S. at 63 (explaining the limits of the exception to the pattern requirement). Accordingly, Defendants’ motion to dismiss is granted as to the County on the surviving § 1983 claim. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 89 of 107
Nason v. Franklin County, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 3. Medical Negligence Defendants argue that Plaintiff's medical negligence claim against the County should be dismissed because the County cannot be liable under a respondeat superior theory given that the Complaint does not allege that Schroyer and Clark were County employees. Def. Mem. at 16. Plaintiff responds that, drawing all reasonable inferences in her favor, she “is obviously claiming that these Defendants were County employees. Pl. Mem. at 19. As Plaintiff points out, when deciding a motion to dismiss for failure to state a claim, this Court must draw all reasonable inferences in Plaintiff's favor. EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014). The Complaint alleges that Schroyer and Clark “provided medical care in the Franklin County Jail.” Compl. ¶¶ 13, 14. Although the Complaint could have specifically alleged that Schroyer and Clark were County employees—and may be amended to do so—it is a fair inference that Schroyer and Clark were County employees. Accordingly, Defendants’ motion is denied on this basis. 4. New York State Constitution Due Process Defendants argue that Plaintiff's claims under the New York State Constitution should be dismissed because they are duplicative of her § 1983 claims. Def. Mem. at 21–22. Plaintiff responds that her claim is not duplicative as to the County because no other claim would allow her to bring a due process violation claim on a respondeat superior theory. Pl. Mem. at 20–21. “The New York State Constitution provides a private right of action where remedies are otherwise unavailable at common law or under § 1983.” Allen v. Antal, 665 F. App'x 9, 13 (2d Cir. 2016) (citing Brown v. State of New York, 89 N.Y.2d 172, 192 (1996)). Even when § 1983 provides a remedy against individuals for a constitutional violation, a plaintiff may still bring a due process claim against a municipality under the New York State Constitution relying on a respondeat superior theory. See Buari v. City of New York, 530 F. Supp. 3d 356, 409 (S.D.N.Y. 2021) (allowing a due process claim under the New York State Constitution to proceed on a respondeat superior theory against a municipality even after dismissing the individual defendants); see id. (collecting cases). Here, the New York State Constitution is the only means for Plaintiff to assert a respondeat superior theory against the County for a due process violation. Accordingly, Defendants’ motion is denied as to this claim. 5. Punitive Damages Defendants argue that Plaintiff may not seek punitive damages from government entities and individuals acting in their official capacity. Def. Mem. at 22–23. Plaintiff does not respond. See generally Pl. Mem. Municipalities are immune from punitive damages in § 1983 actions. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Municipalities are also immune from punitive damages for actions under New York law. Sharapata v. Town of Islip, 56 N.Y.2d 332, 339 (1982). Accordingly, to the extent that Plaintiff seeks punitive damages against the County or the individual Defendants acting in their official capacities, the motion to dismiss that portion of the prayer for relief is granted. IV. LEAVE TO AMEND *9 Plaintiff seeks, in the alternative, to amend the Complaint. Pl. Mem. at 21. Except for circumstances not relevant here, Federal Rule of Civil Procedure 15(a) allows a party to “amend its pleading only with the opposing party's written consent or the court's leave.” Fed. R. Civ. P. 15(a) (1)–(2). A court should “freely give leave when justice so requires, but it may, in its discretion, deny leave to amend ‘for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.’ ” MSP Recovery Claims, Series LLC v. Hereford Ins. Co., 66 F.4th 77, 90 (2d Cir. 2023) (quoting Bensch v. Est. of Umar, 2 F.4th 70, 81 (2d Cir. 2021)). Here, the Court will permit Plaintiff to file an amended complaint within 30 days, but she may not amend her claims against the Sheriff's Department because amendment would be futile. The amended complaint must substitute Plaintiff as the duly appointed representative of Nason's estate. In addition, the amended complaint will replace the existing complaint, and it must be a complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 90 of 107
Nason v. Franklin County, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 supersedes the original, and renders it of no legal effect.”) (quoting Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977)). V. CONCLUSION For these reasons, it is hereby ORDERED that Defendants’ motion to dismiss, Dkt. No. 7, is GRANTED IN PART and DENIED IN PART; it is further ORDERED that Plaintiff's claims against the Franklin County Sheriff's Department are DISMISSED WITH PREJUDICE; it is further ORDERED that Plaintiff's § 1983 claims against Defendant Schroyer and the unidentified defendants; Plaintiff's § 1983 claim against Defendant Franklin County; Plaintiff's § 1983 claim for failure to intervene and conspiracy; and Plaintiff's state law claim for negligent hiring, screening, retention, supervision, and training are DISMISSED WITHOUT PREJUDICE; it is further ORDERED that any portion of Plaintiff's prayer for relief seeking punitive damages against the County or the individual Defendants acting in their official capacities is DISMISSED WITH PREJUDICE; it is further ORDERED that Plaintiff is granted leave to amend to the extent authorized in this Memorandum-Decision and Order; it is further ORDERED that Plaintiff must amend the Complaint to substitute herself in her capacity as the duly appointed representative of Nason's estate within 30 days. IT IS SO ORDERED. All Citations Slip Copy, 2026 WL 759440 Footnotes 1 The Complaint does not spell Schroyer's name consistently, and this decision uses the spelling in the caption. 2 These facts are drawn from the Complaint. The Court assumes the truth of, and draws reasonable inferences from, the well-pleaded factual allegations, see Lynch v. City of New York, 952 F.3d 67, 74–75 (2d Cir. 2020), but does not accept as true any legal conclusions, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 3 “Nason was a transgender man who was receiving gender-affirming care, and went by J.B. Nason, but as of the time of his death had not changed his name.” Compl. ¶ 10. Consistent with the Complaint, masculine pronouns are used for Nason. 4 The Court takes judicial notice of the notices of claim as documents incorporated by reference in the Complaint and integral to it. 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.”); Subaru Distributors Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005) (“In determining the adequacy of the complaint, the court may consider any written instrument attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as documents upon which the complaint relies and which are integral to the complaint.”). 5 Unless otherwise noted, citations to page numbers refer to pagination generated by the Court's ECF system. 6 The Court takes judicial notice of the decree granting letters of administration and the decree granting amended letters of administration as public records. See Williams v. New York City Hous. Auth., 816 F. App'x Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 91 of 107
Nason v. Franklin County, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 532, 534 (2d Cir. 2020) (noting that courts “may consider public records that may be judicially noticed in ruling on motions made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure”). 7 Defendants do not explicitly state that this is a jurisdictional argument, and there appears to be a split in authority about whether New York's notice of claim requirements are jurisdictional or procedural, Yennard v. Herkimer BOCES, No. 6:16-cv-556 (GTS/ATB), 2017 WL 11317859, at *14 (N.D.N.Y. Mar. 27, 2017) (collecting cases), but it is not necessary to reach that issue. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 92 of 107
Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2020 WL 883514 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Kim VASQUEZ, Plaintiff, v. The COUNTY OF ROCKLAND, Sgt. Karl Mueller, Sgt. John Kleber, Correction Officer John Kezek and Correction Officer Paul Obacz, in Their Individual and Official Capacities as Correction Officers Employed By the County of Rockland, Defendants. CIVIL ACTION NO. 13 Civ. 5632 (SLC) | Signed 02/24/2020 Attorneys and Law Firms Kim Vasquez, Dumfries, VA, pro se. Ari Isaac Bauer, P.E.L.S, New York, NY, Rebecca Grace Baldwin Mantello, Catania, Mahon, Milligram & Rider, PLLC, Newburgh, NY, for Defendants. OPINION & ORDER GRANTING MOTION FOR SUMMARY JUDGMENT SARAH L. CAVE, United States Magistrate Judge. I. INTRODUCTION *1 This is a Section 1983 action brought by Kim Vasquez (“Vasquez”), a former inmate of the Rockland County Jail, against the County of Rockland and several corrections officers. Vasquez alleges that, during a prior incarceration at the same jail, he had commenced a federal civil rights action asserting violations of his right to free exercise of his religion under the First Amendment. He alleges that, during his detention in 2012, in retaliation for bringing the prior civil rights action, corrections officers subjected him to religious persecution and an assault that resulted in physical injuries, and then were deliberately indifferent to his medical needs. Defendants have denied all of Vasquez's allegations and now move for summary judgment. For the reasons set forth below, Defendants’ motion is GRANTED. II. BACKGROUND A. Factual Background The Court summarizes below the facts, which are undisputed unless otherwise indicated, from the documents Defendants have submitted in support of their motion (ECF Nos. 97– 100), Defendants’ statement pursuant to Local Civil Rule 56.1 (ECF No. 101), and Vasquez's submissions in response to the motion. (ECF Nos. 102, 103, 110). The Court describes the facts “in the light most favorable to” Vasquez, the non- movant. Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018) (internal quotation omitted); Vasquez v. Reilly, No. 15 Civ. 9528 (KMK), 2018 WL 2768648, at *1 (S.D.N.Y. June 7, 2018). When filing a summary judgment motion, Local Rule 56.1(a) requires the moving party to submit a “short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” Local Civ. R. 56.1(a). In response, the non-moving party must submit “a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.” Local Civ. R. 56.1(b). “A pro se litigant is not excused from this rule,” Brandever v. Port Imperial Ferry Corp., No. 13 Civ. 2813, 2014 WL 1053774, at *3 (S.D.N.Y. Mar. 13, 2014), and “[a] nonmoving party's failure to respond to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible.” T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009); Vasquez, 2018 WL 2768648, at *1 n.1. In this case, Defendants served and filed their Rule 56.1 statement (ECF No. 101), along with a statement pursuant to Local Civil Rule 56.2 notifying Vasquez of the potential consequences of not responding to the motion. (See ECF No. 97-1 (Notice to Pro Se Litigant); ECF No. 98 (Certificate of Service)). Despite this notice, Vasquez did not submit a response to Defendants’ 56.1 Statement, and therefore, the Court may conclude that the facts in Defendants 56.1 Statement are uncontested and admissible. See Vasquez, 2018 WL 2768648, at *1 n.1; Brandever, 2014 WL 1053774, at *3. *2 In the absence of a response from Vasquez that meets the requirements of the Federal Rules of Civil Procedure and this Court's Local Civil Rules, the Court must still afford Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 93 of 107
Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 “special solicitude” to Vasquez, a pro se litigant, and exercise its discretion “to conduct an assiduous review of the record,” including his testimony, in deciding Defendants’ motion. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001); Vasquez, 2018 WL 2768648, at *1 n.1 (collecting cases in which courts conducted independent review of the record where a pro se plaintiff had failed to submit a proper Rule 56.1 statement). To the extent that Vasquez, in the submissions he has made in apparent response to Defendants’ motion, makes factual allegations without citations to the record or that contradict his sworn testimony, the Court will disregard those allegations. See Holtz, 258 F.3d at 73 (explaining that the court is not required to search the record to find genuine issues of material fact that a non-moving party failed to raise); Vasquez, 2018 WL 2768648, at *1 n.1 (disregarding plaintiff's factual assertions in opposition papers that lacked citation or contradicted his sworn testimony); Berry v. Marchinkowski, 137 F. Supp. 3d 495, 502 n.1 (S.D.N.Y. 2015) (same). 1. Events prior to July 14, 2012 In 2007, Vasquez, who is a practicing Muslim, was serving a two-year term at the Rockland County Correctional Facility (the “Jail”). 1 (ECF Nos. 12 ¶¶ 18, 19; 97-10 at 19, 32; 97-15 at 2–3). In 2010, he and two other inmates commenced a Section 1983 lawsuit against the County of Rockland and Reverend Teresa Clapp, the Jail's chaplain, alleging that between March and May 2007, Reverend Clapp had distributed two religious booklets (the “Tracts”) that contained defamatory statements about the Muslim faith. (ECF Nos. 97-15 at 2–3; 101 ¶ 19). The plaintiffs voluntarily withdrew their claims against the County of Rockland, and in 2011, the Honorable Robert P. Patterson, Jr. of this District, granted in part and denied in part Reverend Clapp's motion for summary judgment, dismissing the claims against her in her official capacity. (ECF No. 97-15 at 3–4). The claims against Reverend Clapp in her personal capacity proceeded to trial, following which a jury rendered a verdict in her favor as to each of the three plaintiffs’ claims. (ECF No. 97-15 at 14–20). In 2009, after being charged with drug possession and driving under the influence, Vasquez pled guilty to a felony charge and enrolled in a Drug Treatment Alternative to Prison program (“DTAP”). (ECF Nos. 97-10 at 12–17; 101 ¶¶ 2–4). In about May 2012, while he was in the final stage of DTAP, he was committed to the Jail for a term of 58 days. (ECF No. 97-12 at 13–19, 44). Vasquez converted to Islam sometime in 1999 or 2000. (ECF No. 97-10 at 78–79). He testified that, as a Muslim, before he prays, he and his belongings must be cleaned through a process called ablution. 2 (ECF No. 97-10 at 35). If he or his belongings came into contact with a dog, he believed that he would become “impure” and would need to perform research to learn “exactly” what cleansing steps he would need to perform. (ECF No. 97-10 at 43). He understood that cleansing following contact with a dog had to be performed “more intensely more times than a regular wash.” (ECF No. 97-10 at 35). Vasquez testified that, in 2009, “[r]ight before the incident,” he owned two dogs himself. (ECF No. 97-10 at 117). 2. Events of July 14, 2012 On July 14, 2012, Vasquez was an inmate in the D-Wing at the Jail. (ECF Nos. 97-10 at 26, 29; 101 ¶ 7). On that date, from about 2:20 p.m. to 2:50 p.m., a K-9 search team conducted a drug search of D-Wing. (ECF Nos. 97-9; 101 ¶¶ 8–9). The officers who conducted the search were acting within the scope of their employment at the time. (ECF No. 101 ¶ 10). While the K-9 search was in progress, Vasquez and the other inmates were escorted out of D-Wing. (ECF Nos. 97-10 at 32; 101 ¶ 12). From where he was sitting during the search, he was unable to see the officers conducting the K-9 search. (ECF Nos. 97-10 at 31–32; 101 ¶ 13). *3 Once the K-9 search was completed, Vasquez returned to his living space to find that his crackers appeared to have bite marks from an animal. (ECF No. 97-10 at 34). He was concerned that the dog had touched his belongings, which would render him unable to pray using any items, such as his prayer rug, that the dog had touched. (ECF No. 97-10 at 43–44). With the time to begin his prayers approaching, Vasquez asked the officers where the dog had licked, but did not get an immediate answer. (ECF No. 97-10 at 35–38). He placed the crackers on the floor, and, he alleges, another inmate named Adam Gerber kicked the crackers “under the door” and out into the common area. (ECF Nos. 97-10 at 38; 97-12 at 24). Sergeant Karl Mueller, a Defendant in this action, and several officers whose identities Vasquez did not know, entered D-Wing, handcuffed Vasquez, and escorted him out of the area. (ECF Nos. 97-10 at 38–40; 97-12 at 27; 101 ¶¶ 25–26). Vasquez's disciplinary records indicate that the other officers were Defendants Sergeant John Kleber and Corrections Officers John Kezek and Paul Orbacz. (ECF No. 97-11 at 5). Vasquez claimed that the officers “hit [his] nose Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 94 of 107
Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 and face into the wall” while Sergeant Mueller handcuffed him. (ECF No. 97-10 at 39). The officers then escorted him out of D-Wing to the “dirty tank,” a holding cell that had two benches, a toilet, and a sink. (ECF Nos. 97-10 at 66–67; 101 ¶ 27). En route to the dirty tank, Vasquez claims that the officers “banged” his head into at least two doors. (ECF Nos. 97-10 at 55–58, 63; 97-12 at 36– 37). Vasquez claims that, when he reached the dirty tank, his head was not bleeding, but he felt “dizzy” and was “throwing up and heaving.” (ECF Nos. 97-10 at 52; 97-12 at 41–42). Once he was in the dirty tank, Vasquez alleges that Sergeant Mueller “took his nails and planted them into [his] chest and [ ] scraped downward,” causing “blood spots” on his chest. (ECF Nos. 97-10 at 67–68; 97-12 at 42). Suspecting he had a concussion, Vasquez asked for medical attention. (ECF No. 97-12 at 41). At about 4:00 pm, about an hour after being placed in the dirty tank, a nurse examined Vasquez. (ECF Nos. 97-8 at 71; 101 ¶ 29). She observed “no visual injuries,” but noted that Vasquez was complaining of a headache and vomiting. (ECF No. 97-8 at 71). He asked to go to a hospital outside the Jail, but she determined there was “no reason” to do so. (Id. at 72). The nurse gave Vasquez Tylenol and put him on the sick call list to see a doctor on his next visit. (Id. at 71). The nurse saw him again later the same day and gave him another dose of Tylenol. (Id. at 71–72). Vasquez did not receive any treatment for the scratches on his chest, which healed on their own. (ECF No. 97-10 at 86–87). 3. Events after July 14, 2012 On July 16, 2012, a doctor examined Vasquez at the Jail. (ECF No. 97-8 at 57, 72). The doctor observed some “tenderness” and decreased range of motion in Vasquez's neck, and noted that he complained of a “neck spasm.” (ECF No. 97-8 at 72). The doctor prescribed a four-day regimen of Motrin and Flexeril. (ECF No. 97-8 at 57, 72). 3 The doctor saw Vasquez again on July 25, at which time he complained of weakness from fasting for Ramadan, but did not complain any injuries enduring from the July 14 incident. (ECF No. 97-8 at 69). Although Vasquez claims that the nurse and doctor advised him that he might have a concussion (ECF Nos. 97-10 at 75; 97-12 at 48–50), that diagnosis is not reflected in the infirmary records. (ECF No. 97-8 at 69). As a result of the July 14 incident, Vasquez was charged with causing a disturbance and throwing food, for which he was held in the dirty tank pending a hearing. (ECF Nos. 97-10 at 71; 97-11 at 2; 101 ¶ 42). In their disciplinary reports, the officers described Vasquez's conduct as “throwing a box of crackers” and causing a disturbance. (ECF No. 97-11 at 5). On July 16, 2012, a disciplinary hearing was held, at which Vasquez was found guilty of both infractions, sentenced to 30 days in “lock in,” 30 days loss of commissary, and a $25.00 disciplinary surcharge. (ECF Nos. 97-10 at 71–72; 97-11 at 21; 101 ¶¶ 43–45). While in lock in, Vasquez had to remain in a cell for 23 hours a day and was allowed out for one hour for recreation and 15 minutes for shower and telephone use. (ECF. Nos. 97-10 at 72; 97-11 at 21). Ultimately, Vasquez was released from the Jail on July 26, 2012, and thus served only twelve (12) days in lock in. (ECF Nos. 97-10 at 73–74; 97-12 at 44; 97-13 at 2). *4 Based on the July 14 incident, Vasquez filed a grievance with the Jail. (ECF Nos. 97-13 at 2; 101 ¶ 38). He claimed that after he inquired about whether the search dog had touched his property, Sergeant Mueller and the other officers “ambushed” him and bent his wrist “improperly” while escorting him to the dirty tank, and that Sergeant Mueller “dug his nails” into his chest and neck. (ECF No. 97-13 at 2). He admitted that he received medical attention, but claimed that his requests to see a psychiatrist for his sleeping problems were “ignored.” (ECF No. 97-13 at 2). He requested medical attention outside the Jail to evaluate his symptoms of a concussion and sleep loss. (Id.) Lieutenant John Byron investigated Vasquez's grievance and found that he had been removed from D-Wing after causing a disturbance, and had been examined that day by medical staff, who concluded that no further medical attention was required. (ECF Nos. 97-14 at 2; 101 ¶ 40). Lieutenant Byron therefore found that his complaint was unsubstantiated, and his grievance was denied. (ECF Nos. 97-14 at 2; 101 ¶ 41). At his examination pursuant to Section 50-H of New York General Municipal Law, on August 29, 2013, Vasquez testified that the dizziness and headaches went away after about one month. (ECF No. 97-12 at 53). He claimed that as a result of the incident he continues to suffer from difficulty sleeping, post-traumatic stress, and sexual dysfunction. (ECF No. 97-12 at 60–63). He has been prescribed Paxil, 4 Remeron, 5 Trazodone, 6 and Cialis 7 for these symptoms. (Id.) At his deposition on September 29, 2016, Vasquez testified that he was still traumatized from the July 14, 2012 incident, and was experiencing trouble sleeping, sexual dysfunction, Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 95 of 107
Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 and urination issues, for which he was taking medication that was alleviating his symptoms. (ECF No. 97-10 at 82, 104). He testified that the scratches had healed, although he “might have a little blemish.” (ECF Nos. 97-10 at 86–87; 101 ¶ 32). With regard to the officers’ actions, he testified none of the officers said anything to him about his religion or the prior lawsuit, but he was “certain they knew about it because it was pretty big” and because “when [he] ask[ed] a question about his religion, [he] got beat up.” (ECF Nos. 97-10 at 48–49; 101 ¶¶ 33–36). B. Procedural Background On July 11, 2013, Vasquez, through counsel, filed a civil action in New York State Supreme Court, Rockland County, asserting claims under Section 1983 against the County of Rockland, Sergeant Mueller, and Correction Officers John Does 1–3. (ECF No. 2 at 7–18). On or about July 19, 2013, the County of Rockland and Sergeant Mueller accepted service of the summons and complaint. (ECF No. 2 ¶ 8). On August 12, 2013, the County of Rockland and Sergeant Mueller timely removed the action to this Court. (ECF No. 2 at 1). On December 2, 2013, Vasquez filed the Amended Complaint, substituting Sergeant Kleber and Correction Officers Kezek and Orbacz in place of the Correction Officer John Does 1–3. (ECF No. 12). In the Amended Complaint, Vasquez asserts that the County of Rockland is liable for the acts of Sergeants Mueller and Kleber and Officers Kezek and Orbacz 8 under the doctrine of respondeat superior, for failure to provide adequate training, hiring, supervision, and control, and under a theory of joint and several liability. (ECF No. 12 ¶¶ 37–45). Vasquez alleges that the Individual Defendants engaged in excessive force, retaliated against him, and subsequently denied him medical treatment, in violation of his First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights. (ECF No. 12 ¶¶ 46–52). He seeks $10 million in damages. (ECF No. 12 ¶ 52). On December 10, 2013, the Defendants filed answers to the Amended Complaint. (ECF Nos. 15, 16). *5 On June 26, 2014, the parties consented to the jurisdiction of the Honorable Henry B. Pitman, United States Magistrate Judge, for all further proceedings. (ECF No. 28). On July 30, 2014, after Vasquez refused to cooperate with his counsel, Judge Pitman granted his counsel's motion to withdraw. (ECF No. 32 at 5). Since that date, Vasquez has acted pro se in this litigation. On January 10, 2018, Defendants timely filed a motion for summary judgment. (ECF Nos. 97–101). In response, Vasquez made several filings, although none could be construed as a responsive Rule 56.1 statement or memorandum of law explaining why summary judgment should not be granted in Defendants’ favor. (ECF Nos. 102– 105, 109, 113, 115). Instead, Vasquez claimed that Defendants did not serve him with their summary judgment motion. (ECF Nos. 115, 118, 119). Judge Pitman found Vasquez's assertion “self-serving,” “not credible,” and “insufficient to overcome the presumption of receipt that results from defendants’ affidavit of service.” (ECF No. 117 at 1). In the same Order, Judge Pitman informed Vasquez that Defendants’ summary judgment motion was “unopposed, fully submitted and ripe for decision.” (Id. at 2). Vasquez moved for a “prompt hearing” as well as reconsideration, which Judge Pitman denied. (ECF Nos. 104, 119, 122). This action has now been reassigned to the undersigned. III. DISCUSSION A. Legal Standards 1. Motion for summary judgment Under Federal Rule of Civil Procedure 56, summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Darnell v. Pineiro, 849 F.3d 17, 22 (2d Cir. 2017); Byrd v. City of New York, No. 17 Civ. 2166 (AJP), 2018 WL 259316, at *3 (S.D.N.Y. Jan. 2, 2018). “On a motion for summary judgment, the moving party bears the initial burden of establishing that no genuine factual dispute exists,” and if the movant satisfies that burden, “the burden shifts to the nonmoving party to ‘set forth specific facts showing that there is a genuine issue for trial’ ... and to present such evidence that would allow a jury to find in his favor.” Blue v. City of New York, No. 14 Civ. 7836 (VSB), 2018 WL 1136613, at *5 (S.D.N.Y. Mar. 1, 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). To overcome a summary judgment motion, the nonmoving party “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts.’ ” Blue, 2018 WL 1136613, at *5 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The nonmoving Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 96 of 107
Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 party must “cit[e] to particular parts of materials in the record” to show that “a fact ... is genuinely disputed.” Fed. R. Civ. P. 56(c)(1); see Blue, 2018 WL 1136613, at *5; Byrd, 2018 WL 259316, at *3. Where a party “fails ... to properly address another party's assertion of fact as required by Rule 56(c), the court may,” inter alia, “ ‘consider the fact undisputed for purposes of the motion,’ or ‘grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it.’ ” Fed. R. Civ. P. 56(e)(2), (3); see Blue, 2018 WL 1136613, at *5. Presented with a motion for summary judgment, the Court does not resolve contested issues of facts, but rather determines whether any disputed issue of material fact exists. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Byrd, 2018 WL 259316, at *5. The applicable substantive law determines which facts are material “and which facts are irrelevant.” Byrd, 2018 WL 259316, at *4. The Court must “view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (internal citations omitted); Wandering Dago, 879 F.3d at 30; Vasquez, 2018 WL 2768648, at *1. Summary judgment must be denied “if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002); see Byrd, 2018 WL 259316, at *5 (“If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper.”). *6 As explained above (see supra Section II.A.), the Court has afforded Vasquez, a pro se litigant, “special solicitude” on this motion. Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). This includes reading the pleadings and other submissions Vasquez has made “liberally and interpret[ing] them to ‘raise the strongest arguments that they suggest.’ ” 9 McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); see Hughes v. Rowe, 449 U.S. 5, 9 (1980) (noting that submissions of pro se litigants are “held ‘to less stringent standards than formal pleadings drafted by lawyers’ ”) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). Still, Vasquez's “pro se status does not exempt [him] from compliance with relevant rules of procedural and substantive law.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal citation omitted); Bennett v. James, 737 F. Supp. 2d 219, 226 (S.D.N.Y. 2010) (nonmoving pro se litigant “must produce specific facts to rebut the movant's showing and to establish that there are material issues of fact requiring a trial” (internal quotations omitted); Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (nonmoving pro se plaintiff's “ ‘bald assertion,’ completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment”) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)). 2. Section 1983 liability A plaintiff asserting a claim under 42 U.S.C. § 1983 must show that, “while acting under color of state law, Defendants deprived him of a federal constitutional or statutory right.” Blackson v. City of New York, No. 14 Civ. 462 (VEC), 2014 WL 6772256, at *2 (S.D.N.Y. Dec. 2, 2014) (citing McKithen v. Brown, 481 F.3d 89, 99 (2d Cir. 2007)). To recover damages under Section 1983, a plaintiff must allege “sufficient facts to demonstrate that defendants were personally or directly involved in the alleged violation.” Harris v. Westchester Cty. Dep't of Corr., No. 06 Civ. 2011 (RJS), 2008 WL 953616, at *9 (S.D.N.Y. Apr. 3, 2008). 10 Proof that an individual defendant was involved in the alleged violation is “a prerequisite to finding liability on a claim for damages under [S]ection 1983.” Thomas v. Connolly, No. 10 Civ. 2401 (PAC) (MHD), 2012 WL 3758457 at *10 (S.D.N.Y. Aug. 30, 2012). A defendant's involvement may be established by evidence that: *7 (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 97 of 107
Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 rights of the inmate[ ] by failing to act on information indicating that unconstitutional acts were occurring. Brandon v. Kinter, 938 F.3d 21, 37 (2d Cir. 2019) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)); see Thomas, 2012 WL 3758457, at *11. 3. Municipal liability To prove municipal liability against the City of New York, Vasquez must establish that action pursuant to official municipal policy caused his alleged constitutional injury. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978); Blue, 2018 WL 1136613, at *18; Triano v. Town of Harrison, 895 F. Supp. 2d 526, 531 (S.D.N.Y. 2012) (“[T]here must be a ‘direct causal link between a municipal policy or custom and the alleged constitutional deprivation.’ ”). Failure to establish an underlying constitutional violation necessarily defeats a Monell claim. Askins v. Doe, 727 F.3d 248, 253 (2d Cir. 2013); Blue, 2018 WL 1136613, at *18; Byrd, 2018 WL 259316, *12–13. B. Application of Legal Standards Vasquez claims that, in retaliation for bringing the prior civil rights action that alleged violations of his right to free exercise of his Muslim religion, corrections officers at the Jail subjected him to religious persecution and an assault that resulted in physical injuries, and then were deliberately indifferent to his medical needs. (ECF No. 12 ¶¶ 28, 46– 51). He also argues that the County of Rockland is liable under theories of respondeat superior, failure to train and supervise, and joint and several liability, for the actions of the corrections officers. (Id. ¶¶ 37–45). For purposes of analyzing the motion for summary judgment, the Court interprets Vasquez's claims as asserting that the Individual Defendants are liable under Section 1983 for (1) retaliation under the First Amendment, 11 (2) excessive force, and (3) deliberate indifference. The Court addresses those claims in order, before turning to whether the County of Rockland is liable under Monell for the Individual Defendants’ actions. 1. First Amendment retaliation claim To prevail on his First Amendment retaliation claim, Vasquez “must establish ‘(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected [conduct] and the adverse action.’ ” Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (internal citations omitted)); Vasquez v. Rockland Cty., No. 15 Civ. 8912, 2017 WL 456473, at *5 (S.D.N.Y. Feb. 1, 2017); 12 Turner v. Sidorowicz, No. 12 Civ. 7048 (NSR), 2016 WL 3938344, at *4 (S.D.N.Y. July 18, 2016). Vasquez bears the burden of proving that “the protected conduct was a substantial or motivating factor” in Defendants’ imposition of discipline. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). “[M]ere negligence is not enough to support a claim of retaliation. A plaintiff must show some evidence of retaliatory intent to cause the adverse effect.” Brandon, 938 F.3d at 40. The burden then shifts to Defendants to establish “that the disciplinary action would have occurred ‘even absent the retaliatory motivation,’ which [they] may satisfy by showing that [Vasquez] ‘committed the ... prohibited conduct charged in the misbehavior report.’ ” Holland, 758 F.3d at 226 (quoting Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (internal citation omitted)). *8 In this case, Vasquez has not proffered any evidence supporting his claim that the Individual Defendants used excessive force, were deliberately indifferent to his medical needs, or took disciplinary action against him because of his religion. Although his protected religious observation—his need to perform ablutions as to items touched by a dog before he could pray—led to the incident involving the thrown crackers, which in turn prompted the disciplinary action, “such an attenuated link” cannot constitute a “substantial or motivating factor” for retaliation. Holland, 758 F.3d at 225. Vasquez admitted during his testimony that none of the Individual Defendants said anything to him about his religion before, during, or after the incident. (ECF No. 97-10 at 49). There is no evidence in the record that any of the Individual Defendants were aware of the prior lawsuit. (ECF No. 101 ¶ 20). Instead, Vasquez bases his claim on nothing more than speculation that “they knew about [his prior lawsuit] because it was pretty big.” (ECF No. 97-10 at 48.) His “otherwise conclusory assertion” that the Individual Defendants disciplined him because he asked “a question about [his] religion” does not create a genuine issue of material fact sufficient to defeat summary judgment. (ECF No. 97-10 at 49); Holland, 758 F.3d at 226; see Vasquez, 2017 WL 456473, at *5 (dismissing First Amendment retaliation Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 98 of 107
Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 claim where Vasquez failed to allege that the officers who disciplined him were aware of his grievance); Turner, 2016 WL 3938344, at *4 (granting summary judgment where inmate “failed to submit any evidence regarding [his] retaliation claim”). 2. Excessive force claim With respect to Vasquez's excessive force claim, “the primary source of substantive protection is the Eighth Amendment.” Cox v. Malone, 199 F. Supp. 2d 135, 140 (S.D.N.Y. 2002) (citing Whitley v. Albers, 475 U.S. 312, 327 (1986)), aff'd 56 F. App'x 43 (2d Cir. 2003). To establish an Eighth Amendment violation, an inmate must meet both an objective and a subjective requirement. To meet the objective requirement, the alleged violation must be sufficiently serious by objective standards.... The objective component is context- specific, turning upon contemporary standards of decency.... To meet the subjective requirement, the inmate must show that the prison officials involved had a wanton state of mind when they were engaging in the alleged misconduct. Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999) (internal citations omitted). “When prison officials maliciously and sadistically use force to cause harm,” a plaintiff need not demonstrate significant injury because, in those circumstances, “contemporary standards of decency always are violated.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). “Thus, the malicious use of force to cause harm constitutes an Eighth Amendment violation per se.” Cox, 199 F. Supp. 2d at 140 (citing Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999)). “[A] de minimis use of force will rarely suffice to state a constitutional claim.” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993). Therefore, “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.” Lebron v. Mrzyglod, No. 14 Civ. 10290 (KMK), 2019 WL 3239850, at *14 (S.D.N.Y. July 18, 2019) (quoting Jeanty v. Cty. of Orange, 379 F. Supp. 2d 533, 540 (S.D.N.Y. 2005)). a. Subjective test “[N]egligence does not rise to the level of an Eighth Amendment constitutional violation,” which “occurs when a prison official demonstrates ‘deliberate indifference’ to a substantial risk of serious harm.” Beauvoir v. Falco, 345 F. Supp. 3d 350, 364 (S.D.N.Y. 2018) (quoting Farmer v. Brennan, 511 U.S. 825, 828 (1994) (internal citations omitted)). To satisfy this standard, “a defendant's conduct must reveal an element of intention or recklessness.” Beauvoir, 345 F. Supp. 3d at 364 (citing Darnell, 849 F.3d at 36). Applying the analysis set forth in Beauvoir, the Court first considers what the extent of Vasquez's alleged injuries reveals, if anything, about the Individual Defendants’ intent. Beauvoir, 345 F. Supp. 3d at 365. According to Vasquez's own testimony, although he felt “dizzy” and was “throwing up and heaving” from the two instances when he claims the officers “bang[ed]” his head into the doors en route to the “dirty tank,” he admitted that he was not bleeding and did not describe any cuts, bumps, or abrasions. (ECF No. 97-10 at 52–53; ECF No. 97-12 at 41–42). The medical records from his two examinations by the nurse the same day confirm that he had “no visual injuries,” only that he had a headache and had vomited, for which there was “no reason” to see a doctor outside the Jail. (ECF No. 97-8 at 72). Two days after the incident, Vasquez exhibited only some “tenderness” and decreased range of motion in his neck, and two weeks later, he did not complain of any lingering injuries from the incident. (ECF No. 97-8 at 57, 69, 72). Vasquez also admitted that the scratches from Sergeant Mueller healed on their own. (ECF No. 97-10 at 86–87). Having considered Vasquez's testimony in comparison to all of the infirmary records, the Court finds that Vasquez's alleged injuries, at most, “are very minor indications of a malicious or deliberately indifferent intent,” and therefore, “this factor weighs in Defendants’ favor.” Beauvoir, 345 F. Supp. 3d at 367; see James v. Phillips, No. 05 Civ. 1539 (PKC) (KNF), 2008 WL 1700125, at *4– 5 (S.D.N.Y. Apr. 9, 2008) (where plaintiff was shoved into a cell door leading to swelling of chin and bruising of knee, the court found that “[n]o reasonable jury could conclude that [defendant] acted maliciously or sadistically to cause harm”); DeArmas v. Jaycox, No. 92 Civ. 6139 (LMM), 1993 WL 37501, at *4 (S.D.N.Y. Feb. 8, 1993) (where plaintiff had “no bruise, no swelling, no redness, no pain, and no other indications of physical injury,” the court found “[n]o evidence Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 99 of 107
Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 of malicious purpose or sadism” as is required to establish excessive force claim). 13 *9 Second, the Court evaluates the record to determine “whether force was applied in a good faith effort to maintain or restore discipline, or whether there were ulterior motives driving the use of force.” Beauvoir, 345 F. Supp. 3d at 367 (quoting Hudson, 503 U.S. at 7). Vasquez's contentions alone—which is all he has offered—are an insufficient basis for the Court to conclude that the Individual Defendants’ conduct was malicious or sadistic. See Beauvoir, 345 F. Supp. 3d at 368 (plaintiff's self-serving, uncorroborated testimony was insufficient to establish that corrections officers acted maliciously and sadistically to defeat summary judgment); Rodriguez v. Hahn, 209 F. Supp. 2d 344, 348 (S.D.N.Y. 2002) (“a pro se party's bald assertions unsupported by evidence, are insufficient to overcome a motion for summary judgment”); see also Robinson v. Henschel, No. 10 Civ. 6212 (PGG), 2014 WL 1257287, at *6 (S.D.N.Y. Mar. 26, 2014) (crediting plaintiff's description of his hand being “slammed” repeatedly against wall, but finding that force was “de minimis”); Reid v. Coughlin, No. 86 Civ. 1351 (LAP), 1994 WL 23152, at *4 (S.D.N.Y. Jan. 26, 1994) (explaining that “regardless of whether or not [defendant's] motive was malevolent, the actions in which that motive was manifested were legally insignificant and not ‘repugnant to the conscience of mankind’ ”). There is no evidence in the record that Vasquez and any of the Individual Defendants “had any preexisting relationship that might support an inference that [they] pushed [Vasquez] out of personal resentment or malice.” Cox v. Fischer, 248 F. Supp. 3d 471, 486 (S.D.N.Y. 2017); James, 2008 WL 1700125, at *4 (“This is not a case where the officer and inmate had a history of unpleasant interactions.”). Third, the Court must weigh the competing interests of “the need to maintain or restore discipline through force against the risk of injury.” Hudson, 503 U.S. at 6 (internal citation omitted). To the extent that the Individual Defendants used force, the record indicates that it was “applied in a good faith effort to maintain or restore discipline” by extracting Vasquez from the D-Wing, where he had caused a disturbance, and relocating him to a segregated cell. Figueroa v. Puerschner, No. 13 Civ. 4309 (JGK), 2015 WL 505406, at *4 (S.D.N.Y. Feb. 6, 2015) (granting summary judgment dismissing excessive force claim where plaintiff suffered fractured thumb while corrections officers installed shield on his cell to prevent his misbehavior); Robinson, 2014 WL 1257287, at *5 (granting summary judgment where force that officer used in “slamm[ing]” plaintiff's hand against wall during pat frisk was necessary given plaintiff's refusal to obey and could not “be characterized as wanton”). “It is not within the Court's province to write or advocate particular rules in the prison system,” but rather, “to ensure that when an individual loses certain liberty interests as a penalty for committing offenses against society, that individual is not deprived of the ‘concepts of dignity, civilized standards, humanity, and decency’ that animate the Eighth Amendment.” Beauvoir, 345 F. Supp. 3d at 370 (quoting Hudson, 503 U.S. at 12). Therefore, even if the Court were to conclude that the Individual Defendants “were chiding or bullying [Vasquez] more than was strictly necessary, their conduct did not egregiously depart from the aim of maintaining order, and it did not encroach the realm of violating [Vasquez's] dignitary interests.” Beauvoir, 345 F. Supp. 3d at 370. Therefore, the Court finds that this factor also weighs in favor of the Individual Defendants. Fourth, evaluation of the need for force and the amount of force used “requires asking whether or not the measure taken inflicted disproportionate pain and suffering, and whether the force exposed [Vasquez] to a ‘sufficiently substantial risk of serious damage to his future health.’ ” Beauvoir, 345 F. Supp. 3d at 370 (quoting Farmer, 511 U.S. at 843). Here, the effects of the force the Individual Defendants used were minor, and “whatever force was applied, was not applied for long,” such that this factor weighs in favor of the Individual Defendants. Beauvoir, 345 F. Supp. 3d at 371. Fifth, considering the threat the Individual Defendants reasonably perceived, the Court notes that although they reasonably believed that Vasquez had caused a disturbance in D-Wing, he was not being violent or belligerent, and therefore posed only a minimal threat of physical harm to any corrections officers or other inmates. At most, he posed “a modest threat of disorder in an environment where he had no right to do so and where maintenance of civility and discipline is of utmost importance.” Beauvoir, 345 F. Supp. 3d at 371. The Court therefore finds that this factor weighs only slightly in favor of the Individual Defendants. *10 Sixth and finally, the Court inquires whether the Individual Defendants made any “good-faith efforts to temper the severity of the situation before resorting to a forceful response.” Beauvoir, 345 F. Supp. 3d at 371. Vasquez testified that, in response to his questions about whether the search dog had touched any of his belongings, at least one officer said “okay,” in an apparent acknowledgement of his question. (ECF No. 97-10 at 36). After the crackers were kicked out Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 100 of 107
Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 of his cell—Vasquez testified it was another inmate, but the officers reasonably believed it to be Vasquez—the Individual Defendants handcuffed him, removed him from D-Wing, and transported him to the segregated cell. (Id. at 39). While reasonable minds might disagree about whether the officers could have done more to assuage Vasquez's concerns about the dog, as set forth above, it is not the place of this Court to second-guess the Individual Defendants’ decision about how to maintain order in the circumstances here. See Hudson, 503 U.S. at 6 (explaining that “prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve the internal order and discipline and to maintain institutional security”). Therefore, this factor is at most neutral in the Court's analysis. Having taken into consideration the six factors above in the subjective test for an excessive force claim, the Court finds that the undisputed facts indicate that the Individual Defendants “did not have the requisite culpable state of mind,” and that “there is no other fact on the record that could allow a jury to find a mens rea of deliberate indifference, recklessness, or knowing willingness of a serious risk of harm.” Beauvoir, 345 F. Supp. 3d at 372. b. Objective test The objective test focuses on the harm to Vasquez in light of “ ‘contemporary standards of decency,’ ” and asks “whether the alleged violation is ‘sufficiently serious’ to warrant Eighth Amendment protections.” Beauvoir, 345 F. Supp. 3d at 372 (quoting Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) and Blyden, 186 F.3d at 262). As explained above, the injuries Vasquez describes are of a de minimis character comparable to those other courts have rejected as insufficient to support a Section 1983 excessive force claim. Peters v. Huttel, 15 Civ. 9274 (NSR), 2019 WL 6619602, at *13 (S.D.N.Y. Dec. 5, 2019) (finding that undisputed evidence showed that gate closure that struck plaintiff's shoulder leaving no visible injuries and only “tender[ness] to touch” was not a “sufficiently serious use of force”); Cox, 248 F. Supp. 3d at 485–86 (finding that officer who “slammed [the inmate] into bunk beds, pulled his right arm behind his back, pushed his fact towards a wall, and shoved him into two lockers” causing superficial abrasions and no lasting injuries did not violate Eighth Amendment); Perry v. Stephens, 659 F. Supp. 2d 577, 582 (S.D.N.Y. 2009) (finding that slap that caused “a little bruise” and “minor pain” that abated after a few days were not sufficiently serious or harmful injuries “to reach constitutional dimensions”); James, 2008 WL 1700125, at *4–5 (finding that “shov[ing]” plaintiff into a cell door, causing a swollen chin and bruised knee did not constitute excessive force); Kalwasinski v. Artuz, No. 02 Civ. 2582 (LBS), 2003 WL 22973420, at *4 (S.D.N.Y. Dec. 18, 2003) (finding that a bump and swelling on the head, headaches, scratches, bruises, and abrasions, resulting from a push to floor were “at most minor and superficial” and did not violate Eighth Amendment); Warren v. Westchester Cty. Jail, 106 F. Supp. 2d 559, 569 (S.D.N.Y. 2000) (finding that a push and two punches did not constitute excessive force). Even if, when viewed in the light most favorable to Vasquez, the Individual Defendants’ conduct “may not appear entirely professional,” their actions were not “sufficiently serious to amount to a constitutional violation.” D'Attore, 2013 WL 1180395, at *6 (granting summary judgment where plaintiff suffered de minimis injury as a result of his wheelchair being pushed “recklessly” in a hallway). “Where, as here, a plaintiff alleges only a degree of roughness that is common in prison contexts, and has not claimed a lasting or even fleeting injury resulting from the defendant's conduct, courts in this circuit have routinely held that such conduct is insufficiently serious to support an Eighth Amendment claim.” Vogelfang v. Capra, 889 F. Supp. 2d 489, 507 (S.D.N.Y. 2012). Comparing Vasquez's alleged injuries to these precedents, the Court finds that “no reasonable jury could reach any other conclusion” than that the force the Individual Defendants used “was such a grave departure from ‘contemporary standards of decency’ or that [Vasquez's] injur[ies] [were] serious enough to invite an Eighth Amendment violation.” Peters, 2018 WL 6619602, at *13; Beauvoir, 345 F. Supp. 3d at 372. Accordingly, the Court finds that the Individual Defendants are entitled to summary judgment in their favor on Vasquez's excessive force claim. c. Qualified immunity *11 The Individual Defendants argue that even if the Court were to find a genuine issue of material fact as to whether they used excessive force, qualified immunity protects them from liability. (ECF No. 99 at 15–18). “Qualified immunity protects government officials performing discretionary functions, such as arrests, ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Berman v. Williams, No. 17 Civ. 2757 (JGK), 2019 WL 4450810, at *7 (S.D.N.Y. Sept. 17, 2019) Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 101 of 107
Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see Malley v. Briggs, 475 U.S. 335, 341 (1986) (“As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”) “Requiring the alleged violation of law to be clearly established balances the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Wood v. Moss, 572 U.S. 744, 758 (2014) (internal citations omitted). A right is clearly established when “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001) (citation omitted), overruled on other grounds, Pearson v. Callahan, 555 U.S. 223 (2009); see Mullenix v. Luna, 136 S. Ct. 305, 309 (2015) (per curiam) (right is clearly established when “existing precedent place[s] the conclusion that [the defendant] acted unreasonably in the[ ] circumstances beyond debate”); McKay v. City of New York, 32 F. Supp. 3d 499, 506 (S.D.N.Y. 2014); Berman, 2019 WL 4450810, at *7. In evaluating whether the law was clearly established, “the salient question ... is whether the state of the law” at the time of the defendant's conduct “gave [the defendant] fair warning that [his] alleged treatment of [the plaintiff] was constitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). “If the state of the law at the time of the defendant's conduct did not give fair warning that such conduct was unlawful, then the defendant is entitled to qualified immunity.” Jones v. Muniz, 349 F. Supp. 3d 377, 383 (S.D.N.Y. 2018). The “clearly established law must be particularized to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (internal citation omitted). “The dispositive question is whether the violative nature of particular conduct is clearly established ... in light of the specific context of the case, not as a broad general proposition.” Mullenix, 136 S. Ct. at 308 (internal citations omitted). A case presenting the exact same facts is not required, see Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011), but the right must be “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix, 136 S. Ct. at 308. Law enforcement officers may be entitled to qualified immunity even if they have used excessive force. See, e.g., Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“Even law enforcement officials who reasonably but mistakenly conclude that [their conduct is lawful] are entitled to immunity.”); Stephenson v. Doe, 332 F.3d 68, 77 (2d Cir. 2003) (Supreme Court precedent is “clear that even officers who are found to have used excessive force may be entitled [to] qualified immunity ...”). Because an inmate's right to be free from excessive force is a clearly established right, the relevant qualified immunity inquiry is whether a reasonable officer in the position of the Individual Defendants would have known that their conduct constituted excessive force. See Green v. Montgomery, 219 F.3d 52, 59 (2d Cir. 2000) (“It is beyond dispute that the right to be free from excessive force has long been clearly established.”). As set forth above, the Court finds that the Individual Defendants are entitled to summary judgment on the excessive force claim because the Individual Defendants have shown “that no reasonable jury, viewing the evidence in the light most favorable to [Vasquez], could conclude that [their] actions were objectively unreasonable in light of clearly established law.” O'Brien v. Barrows, 556 F. App'x 2, 4 (2d Cir. 2014) (affirming grant of summary judgment for defendants dismissing excessive force claim on qualified immunity grounds). Because Vasquez has not established a constitutional violation, “there is no necessity for further inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201 (2001), modified by Pearson, 555 U.S. at 236 (2009); see Blandon v. Capra, No. 17 Civ. 65 (KMK), 2017 WL 5624276, at *12 n.19 (S.D.N.Y. Nov. 20, 2017) (where plaintiff failed to state a claim under Eighth and Fourteenth Amendments, qualified immunity analysis was unnecessary); Toliver v. City of New York, No. 10 Civ. 5803 (LTS), 2012 WL 6013098, at *8 (S.D.N.Y. Dec. 3, 2012) (where summary judgment was granted to certain individual defendants, qualified immunity inquiry was unnecessary). *12 Furthermore, even if “reasonable corrections officers could have disagreed as to the constitutionality” of the force the Individual Defendants used in this case, they would still be entitled to the protection of qualified immunity. See Ross v. Corr. Officers John and Jane Does 1–5, 610 F. App'x 75, 78 (2d Cir. 2015) (summary order) (holding that corrections officer was entitled to qualified immunity where “reasonable corrections officers” could have disagreed about the constitutionality of his conduct). As the Second Circuit has explained, “if the court determines that the only conclusion a rational jury could reach is that reasonable officers would disagree about the legality of the defendants’ conduct under the circumstances, summary judgment for the officers is appropriate.” Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995) (explaining that “the ultimate legal determination whether ... a reasonable [ ] officer should have known he acted unlawfully is a question of law better Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 102 of 107
Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 left for the court to decide”). For the reasons set forth above, “ ‘no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, [Vasquez], could conclude that it was objectively unreasonable for the [Individual Defendants]’ to believe that [they] were acting in a fashion that did not clearly violate an established federally protected right.” Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (quoting Halperin v. Kissinger, 807 F.2d 180, 189 (D.C. Cir. 1986)); see Jenkins v. Medert, No. 16 Civ. 1491 (MAD/DJS), 2018 WL 5728050, at *5 (N.D.N.Y. July 2, 2018) (holding that, even if a question of fact existed as to the amount of force used, qualified immunity applied because “no reasonable corrections officer” could have known that the force used “was objectively unreasonable under the circumstances”). Given the absence of a dispute about the material facts in this case, the Court concludes that the Individual Defendants’ conduct is reasonable under the circumstances such that they are entitled to qualified immunity as to Vasquez's excessive force claim. See Lennon, 66 F.3d at 421. 3. Deliberate indifference claim The claim of a convicted prisoner, like Vasquez, that corrections officers were deliberately indifferent to his medical needs “is analyzed under the Eighth Amendment because the right [he] seeks to vindicate arises from the Eighth Amendment's prohibition of cruel and unusual punishment.” Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (internal citations omitted), overruled on other grounds, Darnell, 849 F.3d at 35; Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (inmate must demonstrate “ ‘deliberate indifference to [his] serious medical needs’ ”) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)); Thomas, 2012 WL 3758457, at *10. “[N]ot every lapse in medical care is a constitutional wrong.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). To establish a deliberate indifference claim, Vasquez must satisfy a two-prong test: (1) that “he suffered a sufficiently serious constitutional deprivation,” and (2) that the Defendants “acted with deliberate indifference.” Taylor v. Goorde, 548 F. App'x 696, 698 (2d Cir. 2013); Feliciano v. Anderson, No. 15 Civ. 4106 (LTS) (JLC), 2017 WL 1189747, at *8 (S.D.N.Y. Mar. 30, 2017). a. Objective element The first, or “objective” prong of a deliberate indifference claim “asks whether the deprivation of medical care was sufficiently serious.” Feliciano, 2017 WL 1189747, at *9. This prong itself has two components. First, the Court must evaluate whether Vasquez “ ‘was actually deprived of adequate medical care,’ keeping in mind that only ‘reasonable care’ is required.” Barnes v. Ross, 926 F. Supp. 2d 499, 505 (S.D.N.Y. 2013) (quoting Salahuddin, 467 F.3d at 279). “ ‘[P]rison officials who act reasonably’ ” in response to an inmate's health risk “ ‘cannot be found liable.’ ” Salahuddin, 467 F.3d at 279–80 (quoting Farmer, 511 U.S. at 845). Second, the Court inquires “whether the inadequacy in medical care is sufficiently serious,” i.e., “one that may produce death, degeneration, or extreme pain.” Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (internal citation omitted). “[I]n cases of delayed or inadequate care, ‘it's the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant.’ ” Sledge v. Fein, No. 11 Civ. 7450 (PKC), 2013 WL 1288183, at *5 (S.D.N.Y. Mar. 28, 2013) (quoting Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003)). i. Adequate care In analyzing the objective element of a deliberate indifference claim, the Court first looks to “whether the prisoner was actually deprived of medical care.” Barnes, 926 F. Supp. 2d at 505. “Adequate care is ‘reasonable care’ such that ‘prison officials who act reasonably cannot be found liable.’ ” Martinez v. Aycock-W., No. 12 Civ. 4574, 2016 WL 407294, at *5 (S.D.N.Y. Feb. 1, 2016) (quoting Farmer, 511 U.S. at 845). Vasquez does not name as defendants any medical professionals at the Jail, and thus the Court interprets his claim as alleging that the Individual Defendants were deliberately indifferent to his medical needs and prevented him from timely receiving medical care. *13 The record here demonstrates that Vasquez received adequate care and the nurse and doctor who treated him “acted reasonably, which is all that is required under the Eighth Amendment.” Cruz v. Corizon Health Inc., 13 Civ. 2563 (CS), 2016 WL 4535040, at *5 (S.D.N.Y. Aug. 29, 2016); see Figueroa, 2015 WL 505406, at *5 (finding no deliberate indifference where inmate was immediately x- rayed and given painkiller after incident for which he suffered non-displaced thumb fracture). The infirmary records show Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 103 of 107
Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 that Vasquez saw the nurse twice—once within an hour of arriving in the segregated cell, and again later that day. (ECF Nos. 97-8 at 71–72; 101 ¶ 29). After observing “no visual injuries,” she gave Vasquez Tylenol and put him on the sick call list to see a doctor on his next visit, finding “no reason” for him to see an external doctor. (ECF No. 97-8 at 72.) Vasquez did not receive any treatment for the minor scratches on his chest, which healed on their own. (ECF No. 97-10 at 86–87). Vasquez also twice saw the Jail's doctor, who two days after the incident observed “tenderness” and a decreased range of motion in Vasquez's neck, for which he prescribed a four-day regimen of Motrin and Flexeril. (ECF No. 97-8 at 57, 72). By the time Vasquez saw the doctor again on July 25, he did not make any complaints about injuries enduring from the July 14 incident. (ECF No. 97-8 at 69). Essentially, Vasquez's claim rests on his disagreement with the medical professionals who treated him about whether he had a concussion that warranted further examination and treatment. (ECF Nos. 97-10 at 75). Such a complaint, however, is not cognizable under the Eighth Amendment. See Berman, 2019 WL 4450810, at *7 (granting summary judgment dismissing claim of inadequate medical care where plaintiff was “immediately” taken to medical clinic, seen, and treated and medical records disproved plaintiff's claim that defendants failed to provide medical care “such that no reasonable jury could find in plaintiff's favor”); Feliciano, 2017 WL 1189747, at *11 (finding plaintiff who was examined and given painkiller within two hours of incident failed to establish deprivation of adequate medical care); Estevez v. City of New York, No. 16 Civ. 073, 2017 WL 1167379, at *5 (S.D.N.Y. Mar. 28, 2017) (dismissing claims of inadequate medical care where doctors “promptly treated” plaintiff); Figueroa, 2015 WL 505406, at *5 (finding no deliberate indifference where an inmate immediately received treatment from nurse, who x-rayed him and gave him a painkiller for a minor finger fracture, for which he felt pain for 1.5 weeks). Even if the doctor and nurse misdiagnosed symptoms of a concussion, the Court finds that their diagnoses were reasonable based on the information before them, and does not give rise to liability under the Eighth Amendment. See Feliciano, 2017 WL 1189747, at *12 (finding that plaintiff's “disagreement with the medical professionals caring for him is insufficient to demonstrate that he suffered a serious deprivation of medical care”); Cruz 2016 WL 4535040, at *5 (granting summary judgment dismissing a deliberate indifference claim where the doctor's diagnosis “was reasonable based on the statistical information available to him”); Idowu v. Middleton, No. 12 Civ. 1238, 2013 WL 4780042, at *7 (S.D.N.Y. Aug. 5, 2013) (holding that “alleged misdiagnosis” did not constitute deprivation of adequate medical care). ii. Sufficiently serious condition The Court also finds that Vasquez has failed to establish the second inquiry under the objective prong, that his injuries were sufficiently serious, i.e., “that the alleged deprivation of proper care created such a condition of urgency that it might have produced ‘death, degeneration, or extreme pain.’ ” Cruz, 2016 WL 4535040, at *6 (quoting Johnson, 412 F.3d at 403) (internal citation omitted). Vasquez's alleged injuries amounted to a headache and vomiting, neck tenderness, and scratches on his chest. (ECF No. 97-8 at 57, 69, 71–72). There is no evidence in the record that he suffered any bumps or cuts on his head or neck. All of the symptoms appeared to dissipate within a month, and Vasquez admitted that the scratches healed on their own. (ECF Nos. 97-8 at 57, 69, 72; 97-10 at 86–87; 97-12 at 53). The evidence in the record fails to establish that these injuries were sufficiently serious. See Feliciano, 2017 WL 1189747, at *11 (finding that plaintiff's headaches were not “life-threatening and fast-degenerating”); Figueroa, 2015 WL 505406, at *5 (granting motion for summary judgment dismissing deliberate indifference claim where nondisplaced thumb fracture that caused swelling and pain for less than two weeks was not “sufficiently serious”). Accordingly, the Court finds that Vasquez has failed to establish a basis on which a rational jury could find that his alleged deprivation of medical treatment resulted in a condition of urgency or extreme pain as is required to sustain an Eighth Amendment claim. b. Subjective element *14 The second, mens rea or mental-element prong of a deliberate indifference claim requires an inmate plaintiff to prove “that the charged official acted with a sufficiently culpable state of mind.” Cruz, 2016 WL 4535040, at *4 (citing Salahuddin, 467 F.3d at 280–81). This state of mind “more closely resembles recklessness as the term is used in the civil context, which does not require the defendant to be subjectively aware of the harm resulting from his acts or omissions.” Feliciano, 2017 WL 1189747, at *13. “[A] defendant possesses the requisite mens rea when he acts or fails to act under circumstances in which he knew, or should have known, that a substantial risk of serious harm” Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 104 of 107
Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 would result. Id. (citing Darnell, 849 F.3d at 35). Vasquez must establish that the Defendants’ “actions [were] more than merely negligent.” Darnell, 849 F.3d at 36; Salahuddin, 467 F.3d at 280; Feliciano, 2017 WL 1189747, at *13. Thus, “a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim.” Estelle, 429 U.S. at 106. Similarly, “[i]t is well-established that [neither] mere disagreement over the proper treatment,” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998), nor “[m]edical malpractice ... become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; see Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 312 (S.D.N.Y. 2001) (“[D]isagreements over medications, diagnostic techniques.... forms of treatment, or the need for specialists or the timing of their intervention, are not adequate grounds for a Section 1983 claim.”). To prove an Eighth Amendment claim, an inmate “must demonstrate that the defendants act[ed] or fail[ed] to act while actually aware of a substantial risk that serious inmate harm w[ould] result.” Farid v. Ellen, 593 F.3d 233, 248 (2d Cir. 2010) (internal citations omitted). Prison officials are not liable under Section 1983 “if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844. The Court finds that Vasquez has failed to demonstrate facts that any of the Individual Defendants or the medical professionals who treated him acted with deliberate indifference to his health. As set forth above, a nurse examined and treated Vasquez twice on the day of the incident, the first time within an hour of his arrival in the segregated cell after the incident. (ECF No. 97-8 at 71). The Jail's doctor examined him twice and prescribed medications for his symptoms. (ECF No. 97-8 at 57, 69). There is no evidence that any of the Individual Defendants delayed or limited Vasquez's access to examination and treatment. As explained above, that Vasquez disagrees with the diagnoses and treatment he was provided does not give rise to liability for deliberate indifference under the Eighth Amendment. See Cruz 2016 WL 4535040, at *5 (granting summary judgment dismissing deliberate indifference claim where doctor's diagnosis “was reasonable based on the statistical information available to him”); Idowu, 2013 WL 4780042, at *7 (holding that “alleged misdiagnosis” did not constitute deprivation of adequate medical care). Having failed to establish either the subjective or the objective elements of a deliberate indifference claim, the Court concludes that Vasquez has failed to demonstrate a genuine issue of material fact, and the Individual Defendants are entitled to summary judgment dismissing his Eighth Amendment claim. 4. Municipal liability A municipality such as the County of Rockland may be sued directly for constitutional violations under Section 1983, Monell, 436 U.S. at 690, but cannot be held liable for acts of its employees “by application of the doctrine of respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986); Byrd, 2018 WL 259316, at *9 n.13 (collecting cases rejecting respondeat superior as a basis for municipal liability under Section 1983); Cruz, 2016 WL 4535040, at *8. Claims based on a violation of Monell do not “create a stand-alone cause of action under which a plaintiff may sue over governmental policy, regardless of whether he suffered an infliction of a tort resulting from the policy.” Askins, 727 F.3d at 253. Therefore, Vasquez's claim based on “municipal liability under Monell cannot survive without an underlying constitutional violation.” Blue, 2018 WL 1136613, at *18. Because each of Vasquez's claims against the Individual Defendants fails, he has not established a basis on which the County of Rockland bears liability. See id.; Frost v. City of New York, No. 15 Civ. 4843 (NRB), 2019 WL 1382323, at *2 (S.D.N.Y. Mar. 27, 2019) (granting summary judgment dismissing municipal liability claims where underlying constitutional claims were dismissed); Byrd, 2018 WL 259316, at *13 (same); Cruz, 2016 WL 4535040, at *9 (same). Even if he had established that the Individual Defendants’ conduct equated to a constitutional violation, Vasquez has proffered no evidence to show that any of their conduct occurred pursuant to a County of Rockland policy or practice. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985) (“Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy[ ] [that] can be attributed to a municipal policymaker.”); Mitchell v. City of New York, 841 F.3d 72, 80 (2d Cir. 2004) (affirming summary judgment dismissing municipal liability claim). IV. CONCLUSION *15 For the reasons set forth above, the Defendants’ motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 is GRANTED in its entirety and all of Vasquez's Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 105 of 107
Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 claims are dismissed. The Clerk of the Court is respectfully directed to close this case. I further decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), as Vasquez has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). All Citations Not Reported in Fed. Supp., 2020 WL 883514 Footnotes 1 The Jail is located at 55 New Hempstead Road, New City, New York. (ECF Nos. 12 ¶ 15; 97-10 at 24; 101 ¶ 1). 2 “Ablution is a cleansing process required before prayers in the Islamic and Muslim religions.” Lopez v. State of New York Dep't of Corr. Servs., No. 94 Civ. 6708, 1996 WL 396152, at *1 n.2 (S.D.N.Y. July 15, 1996). If a Muslim is “unable to make the appropriate ablutions,” he may postpone the prayer. Chatin v. State, No. 96 Civ. 420 (DLC), 1998 WL 196195, at * 2 (S.D.N.Y. Apr. 23, 1998). 3 Flexeril, also known as cyclobenzaprine, is a short-term muscle relaxant taken orally. See Flexeril Tablet, WEBMD, https://www.webmd.com/drugs/2/drug-11372/flexeril-oral/details (last visited February 10, 2020). 4 Paxil, also known as paroxetine, is used to treat depression, panic attacks, and anxiety disorders. See Paxil CR, WEBMD, https://www.webmd.com/drugs/2/drug-32900/paxil-cr-oral/details (last visited February 10, 2020). 5 Remeron, also known as mirtazapine, is used to treat depression. See Remeron Tablet, WEDMD, https:// www.webmd.com/drugs/2/drug-13707/remeron-oral/details (last visited February 10, 2020). 6 Trazodone is used to treat depression. See Trazodone HCL, WEDMD, https://www.webmd.com/drugs/2/ drug-11188/trazodone-oral/details (last visited February 10, 2020). 7 Cialis, also known as tadalafil, is used to treat male sexual function problems. See Cialis, WEBMD, https:// www.webmd.com/drugs/2/drug-77881/cialis-oral/details (last visited February 10, 2020). 8 Where appropriate, the Court refers to Mueller, Kleber, Kezek, and Orbacz collectively as the “Individual Defendants.” 9 Although Vasquez had the benefit of counsel at the beginning of this case and counsel drafted the operative Amended Complaint, Vasquez has been pro se since July 30, 2014, that is, for most of this litigation, through discovery and motion practice. (ECF No. 70 at 2). Magistrate Judge Pitman also observed that Vasquez has undergone treatment for mental illness, which may have further impeded his ability to represent himself in this action. (See ECF Nos. 70 at 3; 117). 10 As an inmate asserting a Section 1983 claim, Vasquez was required to first exhaust his administrative remedies in accordance with Section 803 of the Prison Litigation Reform Act (the “PLRA”). See Ruggiero v. Cty. of Orange, 467 F.3d 170, 173 (2d Cir. 2006). Although Defendants asserted in their Answers an affirmative defense of failure to exhaust (see ECF Nos. 15 at 5; 16 at 5), they do not argue in their Motion that Vasquez has failed to exhaust his administrative remedies as to any of his claims. (See ECF No. 99 at 2–3). Therefore, the Court deems the argument waived and finds that Vasquez has exhausted his claims for purposes of its analysis of this motion. See Ruggiero, 467 F.3d at 175 (holding that exhaustion is excused where “defendants have either waived the defense of failure to exhaust or acted in such a[ ] way Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 106 of 107
Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 as to estop them from raising the defense”); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004) (finding that government had waived exhaustion defense in statements to court during hearing); Banks v. Cty. of Westchester, 168 F. Supp. 3d 682, 693 n.3 (S.D.N.Y. 2016) (“failure to exhaust administrative remedies in compliance with the PLRA is an affirmative defense” that “ ‘may be waived by a defendant, or forfeited by failure to raise the defense.’ ”) (quoting Arnold v. Goetz, 245 F. Supp. 2d 527, 532 (S.D.N.Y. 2003)). 11 Defendants interpret Vasquez's complaint as also raising a claim under the First Amendment that his right to free exercise of religion was violated. (ECF No. 99 at 20-22). To the Court, however, Vasquez's complaint, for which he had the benefit of counsel in preparing, only asserts that the Individual Defendants retaliated against him on the basis of his religion, and does not contain any allegations that he was precluded from freely exercising his religion. (ECF No. 12 at ¶¶ 28 (alleging that Individual Defendants “had a dog search” Vasquez's property “[i]n retaliation for his prior lawsuit”); 49 (alleging that the Individual Defendants “exacted retaliation at the Plaintiff as the result of his exercising his protected rights to allege that his First Amendment Rights were violated”)). Therefore, the Court will analyze only whether Vasquez's retaliation claim survives Defendants’ motion for summary judgment. (See supra Section III.A.1.). 12 The cited case involved, inter alia, Vasquez's claims that his First Amendment rights were violated when he attempted to file a grievance relating to conduct of corrections officers at the Jail. The Honorable Kenneth M. Karas granted the County of Rockland's motion to dismiss the complaint. Vasquez, 2017 WL 456473, at *1, 9. 13 To the extent Vasquez asserts that his difficulty sleeping, stress, and sexual dysfunction were caused by the incident at the Jail, such emotional injuries “cannot form the basis of an excessive force claim.” D'Attore v. City of New York, No. 10 Civ. 6646 (WHP), 2013 WL 1180395, at *5 (S.D.N.Y. Mar. 15, 2013) (rejecting claims of “mental anguish” and “heightened anxiety” as basis for excessive force claim); Davis v. United States, No. 03 Civ. 1800 (NRB), 2004 WL 324880, at *10 n.6 (S.D.N.Y. Feb. 18, 2004) (excessive force claim requires physical injury). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 107 of 107
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