Williams v. Shawangunk DOCCS

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TEARRE WILLIAMS,
Plaintiff,
v.
SHAWANGUNK DOCCS, et al.,
Defendants.
9:25-CV-0903
(GTS/MJK)
Tearre Williams, Plaintiff pro se
Mithcell J. Katz, U.S. Magistrate Judge
DECISION AND ORDER
I. 	INTRODUCTION
Williams commenced this action by filing a complaint pursuant to 42
U.S.C. § 1983 (“Section 1983”) with an application to proceed in forma
pauperis (“IFP”). (Dkts. 1, 14). By Decision and Order filed on September 19,
2025 (the “September 2025 Order”), United States District Court Judge
Glenn T. Suddaby granted the IFP application and reviewed the sufficiency
of the complaint under 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b)(1). (Dkt. 15). Based on that review, the Court dismissed Williams’s
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claims without prejudice for failure to state a claim. (Id.). Willaims was
afforded the opportunity to file an amended complaint. (Id.).
On October 22, 2025, plaintiff filed a submission with the Court. (Dkt.
16).
II. 	DISCUSSION
The filing of amended and supplemental pleadings is governed by Fed.
R. Civ. P. 15. A party may amend, as of right, if the pleading is one to which
a responsive pleading is required, 21 days after service of a responsive
pleading or 21 days after service of a motion under Fed. R. Civ. P. 12(b), (e),
or (f), whichever is earlier. See Fed. R. Civ. P. 15. An amended complaint is
intended to replace and supercede in its entirety the previous complaint.
Once accepted for filing, the amended complaint becomes the operative
pleading, and the original complaint is no longer considered. See Williams v.
Annucci, No. 9:20-CV-1417 (BKS/TWD), 2021 WL 4775970, at *6 (N.D.N.Y.
Oct. 13, 2021) (“[I]t is well established that an amended complaint
ordinarily supersedes the original, and renders it of no legal effect.”) (citing
Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)). This
requirement is buttressed by the Local Rules of Practice for the Northern
District of New York (“Local Rules”), which provide, in pertinent part, that
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amended pleadings must be complete pleadings which will supersede the
original pleading in all respects. See N.D.N.Y.L.R. 15.1(a). The Local Rules
further state that a “party shall not incorporate any portion of its prior
pleading into the proposed amended pleading by reference.” Id. One of the
purposes of the requirement that an amended complaint be a complete
pleading, is to ensure that all the allegations asserted against the
defendants are contained in a single document, thereby reducing the
likelihood that a party will overlook one or more allegations against him.
See Walker v. Fischer, No. 10-CV-1431 (MAD/DEP), 2012 WL 1029614, at
*10 (N.D.N.Y. Mar. 26, 2012) (citation omitted). This requirement
eliminates the confusing nature of “piecemeal” amended complaints. See
Santiagocruz v. Doe #1, No. 9:21-CV-0806 (TJM/ML), 2021 WL 5629097, at
*4 (N.D.N.Y. Dec. 1, 2021) . In other words, an amended complaint must
include all the allegations against each defendant against whom the case is
going forward so that the amended complaint may stand alone as the sole
complaint in the action. “While we have insisted that the pleadings prepared
by [pro se litigants] be liberally construed . . . we have never suggested that
procedural rules in ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without counsel.” Allevato v. Howard,
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No. 9:21-CV-1159 (GTS), 2022 WL 42436, at *2 (N.D.N.Y. Jan. 5, 2022)
(citing McNeil v. U.S., 508 U.S. 106 (1993)). Plaintiff's submission (Dkt. No.
16) does not comply with N.D.N.Y. Local Rule 15.1. Specifically, the
submission does not include a caption, a list of parties, any claims, or any
request for relief. Upon review of the submission, it is unclear who the
defendants are, what claims Williams is asserting, and what relief Williams
seeks. As noted, Williams may not submit an amended complaint and at the
same time proceed with the original complaint. Compliance with this
Court's local rules is “not merely technical in nature.” 	See Cusamano v.
Sobek, 604 F.Supp.2d 416, 508 (N.D.N.Y. 2009).
At this juncture, the Court will not accept the submission (Dkt. 16) as
the amended complaint. The complaint (Dkt. 1) remains the operative
pleading.1 Williams is directed to, within SIXTY DAYS of this Decision and
Order, submit a proposed amended pleading that complies with the
1 Considering plaintiff's pro se status, the Clerk of the Court accepted the submission at
Docket Number 16 for filing. The Court advises plaintiff, however, that the Court will
not review any document except to the extent that plaintiff specifically identifies and
references a properly filed motion or pleading. The Court docket is not intended to serve
as a repository for plaintiff's records.
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September 2025 Order and this Court’s Local Rules.
III. 	CONCLUSION
WHEREFORE, it is hereby
ORDERED that Williams must comply with the directives set forth in
this Decision and Order within SIXTY days; and it is further
ORDERED, that the clerk serve a copy of this Decision and Order on
Williams at the address the Court has on file, along with copies of the
unpublished decisions cited herein in accordance with Lebron v. Sanders,
557 F.3d 76 (2d Cir. 2008) (per curiam).
Dated: November 25, 2025.
____________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Wonder WILLIAMS, Plaintiff,
v.
Anthony ANNUCCI, Acting Commissioner, Department
of Corrections and Community Supervision, James
O'Gorman, Deputy Commissioner for Correctional
Facilities, John Colvin, Superintendent of Five
Points, Matthew Thoms, Superintendent of Mid-
State, Donald Venettozzi, Director of DOCCS Special
Housing and Inmate Disciplinary Program, John or
Jane Does 1–5, Members of the DOCCS SHMC at
Five Points, and John or Jane Does 6–10, Members
of the DOCCS SHMC at Mid-State, Defendants. 1
1 While Plaintiff's original complaint asserted claims
against Defendants Joseph Bellnier and Albert
Prack, (see Dkt. No. 1), the First Amended
Complaint does not name either Bellnier or Prack
as a Defendant, (see Dkt. No. 24). The parties’
briefs likewise do not mention Defendants Bellnier
and Prack or include them in the case caption. (Dkt.
Nos. 28-1, 30, 33). Accordingly, the Court deems
Plaintiff's claims against Defendants Bellnier and
Prack to be waived. See Elliot v. City of Hartford,
649 F. App'x 31, 32 (2d Cir. 2016) (summary order)
(noting that it is “generally the case that ‘[a]ll
causes of action alleged in an original complaint
which are not alleged in an amended complaint are
waived’ ” (quoting Austin v. Ford Models, Inc.,
149 F.3d 148, 155 (2d Cir. 1998), abrogated on
other grounds by Swierkiewicz v. Sorema N.A., 534
U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002))).
The Clerk of the Court is respectfully directed to
terminate Defendants Bellnier and Prack on the
docket.
9:20-cv-1417 (BKS/TWD)
|
Signed 10/13/2021
Attorneys and Law Firms
For Plaintiff: James D. Arden, Julia L. Bensur, Laura Sorice,
Sidley Austin LLP, 787 Seventh Avenue, New York, NY
10019.
For Defendants Annucci, O'Gorman, Colvin, Thoms, and
Venettozzi: Letitia James, Attorney General of the State of
New York, Keith J. Starlin, Assistant Attorney General, of
Counsel, The Capitol, Albany, NY 12224.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, United States District Judge:
I. INTRODUCTION
*1 Plaintiff Wonder Williams brings this action under
42 U.S.C. § 1983 against Defendants Anthony Annucci,
James O'Gorman, John Colvin, Matthew Thoms, Donald
Venettozzi, and John or Jane Does 1–10, alleging violations
of his Eighth and Fourteenth Amendment rights during
Plaintiff's incarceration in New York State Department
of Corrections and Community Supervision (“DOCCS”)
correctional facilities. (Dkt. No. 24). Presently before the
Court is Defendants’ motion, pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6), to dismiss Plaintiff's first amended
complaint (“FAC”). (Dkt. No. 28). Plaintiff has opposed the
motion, (Dkt. No. 30), and Defendants have responded, (Dkt.
No. 33). For the following reasons, Defendants’ motion is
granted in part and denied in part.
II. FACTS 2
2 The facts are drawn from the FAC. The
Court assumes the truth of, and draws
reasonable inferences from, the well-pleaded
factual allegations. Faber v. Metro. Life Ins. Co.,
648 F.3d 98, 104 (2d Cir. 2011).
Plaintiff was placed into DOCCS custody on March 6,
2010 for charges “stemming from his involvement in a
shooting and murder-for-hire plot.” (Dkt. No. 24, ¶ 32).
Immediately upon entering DOCCS custody, Plaintiff was
placed in administrative segregation (“Ad Seg”), a form of
solitary confinement in the Special Housing Unit (“SHU”),
at Auburn Correctional Facility (“Auburn”). (Id. ¶ 33).
Plaintiff's placement on Ad Seg was recommended by S.B.
Duncan and Superintendent Graham at Auburn, because
they believed Plaintiff's placement in the general population
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posed an “extreme risk to staff, inmates and the general
public as well as the safety, security, and good order of the
facility.” (Id. ¶¶ 3, 33). In support of this determination the
correctional staff cited Plaintiff's “use of telephones, U.S.
Mail, Western Union, and jail visits while he was incarcerated
on Riker's Island in 2007 to coordinate a failed murder-for-
hire plot.” (Id. ¶ 33). Plaintiff remained confined in Ad Seg at
Auburn until July 6, 2015. (Id. ¶ 34). On July 6, 2015, Plaintiff
moved to Ad Seg at Five Points Correctional Facility (“Five
Points”). (Id.).
While in Ad Seg, Plaintiff was housed in a concrete cell
“roughly the size of a standard parking space” for about 23
hours per day. (Id. ¶ 41). Plaintiff's cells were dirty, “with
dirty water sometimes coming out of the sinks,” and there
was always a bright light kept on in or outside his cell. (Id.).
He was allowed to shower three times per week, although
he often had to shower in cold water or was not taken to
the showers by corrections officers at his allotted time. (Id.
¶ 42). Plaintiff was allowed one hour of outdoor recreation
each day. (Id. ¶ 43). Plaintiff did not have access to group
meals, recreation, or education and had “minimal human
interaction.” (Id. ¶¶ 44–46).
New York regulations required DOCCS to periodically
conduct reviews of Plaintiff's status on Ad Seg. (Id. ¶ 61;
see id. (alleging that DOCCS was required to review his
status every 30 days)); see also 7 N.Y.C.R.R. § 301.4(d)
(“An inmate in administrative segregation status shall have
such status reviewed every 60 days in accordance with the
[specified] procedure.”). 3 However, Plaintiff alleges that he
never received any meaningful review of his Ad Seg status.
(Dkt. No. 24, ¶ 62). The reviews conducted by DOCCS
contained “substantially similar, sometimes even identical,
language to prior reviews and used formulaic, boilerplate
language” that did not consider any changed circumstances.
(Id. ¶ 63). Plaintiff's reviews from May 2010 to November
2017 contained “the same recitation” of his criminal history,
his status as a gang member, and details regarding his crime
of conviction and stated “no other basis” for keeping Plaintiff
in Ad Seg. (Id. ¶¶ 64–65). Plaintiff was not released from
Ad Seg even when the reviews acknowledged his positive
behavior. (Id. ¶¶ 67–72; see, e.g., id. ¶¶ 68 (February 12,
2014 review stating: “[Plaintiff's] current behavior is within
acceptable and appropriate limits.”), 69 (October 10, 2014
review noting that Plaintiff “has a clean disciplinary record”),
70 (September 8, 2015 review noting that “[w]hile in
administrative segregation [Plaintiff] has exhibited respectful
behavior”)). Moreover, Plaintiff was not given any indication
as to how he could change his behavior to be taken off Ad
Seg status. (Id. ¶ 63).
3 Section 301.4 was amended effective December
16, 2020. In this decision, the Court cites to the
version of Section 301.4 that was in effect at the
time Plaintiff was confined in Ad Seg and the step-
down program.
*2 On December 1, 2017, Plaintiff was placed into the
step-down program and housed in the SHU at Mid-State
Correctional Facility (“Mid-State”). (Id. ¶¶ 35–36). The
step-down program is designed to provide for a “phased
transition for individuals in Ad Seg to return to the general
population.” (Id. ¶ 37). Plaintiff alleges, however, that the
“conditions in the step-down program were equally as
restrictive as in Ad Seg and constituted continued solitary
confinement.” (Id. ¶ 37). Plaintiff remained confined in his
cell for 23 hours a day, and often was denied his one hour of
daily recreation. (Id. ¶ 50). Although Plaintiff did receive an
“additional four hours of inmate programming sessions each
week,” he was chained during the sessions. (Id.). Plaintiff
“was not afforded any hearing or subsequent review of
his segregated status” while in the step-down program and
therefore “spent over a year in the step-down program without
a meaningful review of his status, even though the conditions
constituted continued solitary confinement.” (Id. ¶¶ 35, 52,
74–75).
As a result of the time he spent in solitary confinement,
Plaintiff suffered from medical and mental health conditions.
(Id. ¶ 53). Plaintiff suffered from sleep disturbances,
migraines, weight loss due to a thyroid condition, and
back and neck pain. (Id. ¶¶ 55–58). He also suffered from
“anxiety, depression, hopelessness, insomnia, and noticeable
changes to his personality including increased introversion
and difficulty focusing on daily tasks.” (Id. ¶ 59). Plaintiff
alleges that Defendants knew the deleterious effects of
solitary confinement and that they were aware, by means
of administrative grievances and written complaints, that
Plaintiff was suffering “significant and lasting physical and
mental injury as a result of his solitary confinement.” (Id. ¶¶
77–78).
On February 6, 2019, Plaintiff was moved to the general
population. (Id. ¶ 38). On February 23, 2021, Plaintiff was
released from DOCCS custody on parole. (Id. ¶ 31).
III. STANDARD OF REVIEW
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To survive a motion to dismiss for failure to state a claim, “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, 127 S.Ct. 1955,
167 L.Ed.2d 929 (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, 2017 U.S. Dist. LEXIS 155140 (S.D.N.Y.
Sept. 22, 2017) (quoting Twombly, 550 U.S. at 555, 127 S.Ct.
1955). The Court must accept as true all 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 Commc'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, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009).
IV. DISCUSSION
A. STATUTE OF LIMITATIONS
Defendants argue that Plaintiff's claims regarding any acts or
omissions prior to November 16, 2017 should be dismissed
as barred by the statute of limitations. (Dkt. No. 28-1, at 9–
13); see DeSuze v. Ammon, 990 F.3d 264, 271 (2d Cir. 2021)
(“[Section 1983] claims ... are subject to a three-year statute of
limitations.”). Plaintiff responds that his Eighth Amendment
claims are timely because the continuing violation doctrine
applies and that his Fourteenth Amendment procedural due
process claims are timely because the FAC alleges actions
“that either apply to the entire duration” of Plaintiff's solitary
confinement or which “expressly occurred after November
2017.” (Dkt. No. 30, at 13–17).
The continuing violation doctrine applies to claims that are
“composed of a series of separate acts that collectively
constitute one unlawful [ ] practice.” Gonzalez v. Hasty, 802
F.3d 212, 220 (2d Cir. 2015) (quoting Washington v. County
of Rockland, 373 F.3d 310, 318 (2d Cir. 2004)) (internal
quotation marks omitted). Where applicable, the doctrine
provides an “exception to the normal knew-or-should-have-
known accrual date.” Id. (quoting Harris v. City of New
York, 186 F.3d 243, 248 (2d Cir. 1999)) (internal quotation
marks omitted). The continuing violation doctrine applies to
“claims that by their nature accrue only after the plaintiff has
been subjected to some threshold amount of mistreatment.”
Lucente v. County of Suffolk, 980 F.3d 284, 309 (2d Cir. 2020)
(citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
114–15, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). It does
not, however, apply to “discrete unlawful acts,” even if those
discrete unlawful acts are part of “serial violations.” Id.
*3 To assert a timely claim under the continuing violation
doctrine, a plaintiff must allege “some non-time-barred acts”
contributing to the alleged violation. Id. (quoting Harris,
186 F.3d at 250). 4 “Although the statute of limitations is
ordinarily an affirmative defense that must be raised in the
answer, a statute of limitations defense may be decided on a
Rule 12(b)(6) motion if the defense appears on the face of the
complaint.” See Connecticut Gen. Life Ins. Co. v. BioHealth
Labs., Inc., 988 F.3d 127, 131–32 (2d Cir. 2021) (quoting
Thea v. Kleinhandler, 807 F.3d 492, 501 (2d Cir. 2015)). In
the context of an alleged continuing violation, if a plaintiff
can demonstrate “some [ ] act that did occur within the statute
of limitations, so that his claim would not be time-barred,”
Harris, 186 F.3d at 250, “the mere allegation of the existence
of such a [continuing] policy would be sufficient to withstand
a challenge for failure to state a claim,” Lightfoot v. Union
Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997).
4 Moreover, where a plaintiff brings a claim against
multiple defendants, he must allege a non-time-
barred act as to each defendant. See Shomo v. City
of New York, 579 F.3d 176, 183 (2d Cir. 2009)
(“The continuing violation doctrine does not apply
to the claim against [the individual defendant]
because there is no indication that [the plaintiff]
is able to allege acts involving [that defendant]
that fall within the three-year statutory period.”);
Lucente, 980 F.3d at 310 (holding that Section 1983
claims could proceed against certain individual
defendants “as long as each plaintiff alleged an
unconstitutional act committed by each particular
defendant that falls within the three-year statutory
period”).
The Second Circuit has applied the continuing violation
doctrine to Eighth Amendment deliberate indifference claims.
See, e.g., Gonzalez, 802 F.3d at 224 (applying the doctrine
to an Eighth Amendment claim for cruel and unusual
punishment); Shomo, 579 F.3d at 182 (holding that the
doctrine can apply to an Eighth Amendment claim for
deliberate indifference to serious medical needs); Smith v.
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Annucci, No. 18-cv-06261, 2019 WL 539935, at *7, 2019
U.S. Dist. LEXIS 21888 (W.D.N.Y. Feb. 11, 2019) (applying
the doctrine to an Eighth Amendment claim challenging long-
term confinement in SHU). Accordingly, Plaintiff's Eighth
Amendment claims are subject to the continuing violation
doctrine, and at what point his claims accrued “is a question
of fact.” Gonzalez, 802 F.3d at 224. Moreover, even where
a claim subject to the continuing violation doctrine accrues
before the statute of limitations expires, it will still be
timely “as long as the violation of rights continued past”
the expiration of the limitations period—i.e., as long as the
plaintiff alleges a non-time-barred act contributing to the
alleged violation. Id. (citing Morgan, 536 U.S. at 117, 122
S.Ct. 2061); Lucente, 980 F.3d at 309.
Here, Plaintiff alleges that he was held in solitary confinement
from March 6, 2010 to February 6, 2019. (Dkt. No. 24, ¶¶
25, 32–38). Therefore, regardless of when Plaintiff's Eighth
Amendment claim challenging his long-term confinement in
isolation accrued, Plaintiff has alleged that the violation of his
rights continued until February 6, 2019, less than two years
before he commenced this action on November 16, 2020. (See
Dkt. No. 1). The Court therefore cannot conclude from the
face of the FAC that Plaintiff's Eighth Amendment claims
are barred as a matter of law. See Cardwell v. Davis Polk
& Wardwell LLP, No. 19-cv-10256, 2020 WL 6274826, at
*40, 2020 U.S. Dist. LEXIS 198655 (S.D.N.Y. Oct. 24, 2020)
(“The Court declines to parse how the continuing violation
doctrine may apply to [the plaintiff's] claims at the motion to
dismiss stage.”) (quotation marks omitted).
*4 On the other hand, the continuing violation doctrine is
not applicable to claims asserting a violation of the plaintiff's
procedural due process rights. See, e.g., Gonzalez, 802 F.3d at
223 (noting the “inapplicability” of the doctrine to procedural
due process claims); Smith, 2019 WL 539935, at *5, 2019
U.S. Dist. LEXIS 21888 (holding the doctrine did not apply
to the plaintiff's claims for procedural due process violations
and collecting cases). Even though successive denials of a
plaintiff's procedural due process rights “may combine to
form a ‘serial violation,’ ” each denial is a discrete act which
triggers the accrual of a discrete claim. Gonzalez, 802 F.3d
at 223. Accordingly, Plaintiff has a discrete claim for each
alleged denial of “meaningful and timely periodic review” of
his detention in Ad Seg or of “meaningful notice of what he
must do to earn release,” (Dkt. No. 24, ¶ 114), and each of
those claims is subject to a three-year statute of limitations.
Therefore, Plaintiff's procedural due process claim would be
able to proceed as to any reviews—or lack thereof—occurring
within three years of the filing of his complaint.
However, dismissal under Federal Rule of Civil Procedure
12(b)(6) on the ground of a statutory bar, such as lack of
timeliness, is appropriate only when “it is clear from the face
of the complaint” that “the plaintiff's claims are barred as
a matter of law.” Sewell v. Bernardin, 795 F.3d 337, 339
(2d Cir. 2015) (quoting Staehr v. Hartford Fin. Servs. Grp.,
547 F.3d 406, 425 (2d Cir. 2008)). Here, Plaintiff alleges
that he exhausted his administrative remedies by appealing
the finding of his initial Ad Seg hearing, appealing his Ad
Seg reviews, and submitting various grievances to the Inmate
Grievance Resolution Committee. (Dkt. No. 24, ¶¶ 82–86).
The Second Circuit has held that “the applicable statute of
limitations must be tolled while a prisoner completes the
mandatory exhaustion process.” Gonzalez v. Hasty, 651 F.3d
318, 323–24 (2d Cir. 2011). The parties have not addressed
how long it took Plaintiff to complete the exhaustion process
regarding his procedural due process claims and for how long
the statute of limitations applicable to his claims should be
tolled. Accordingly, the Court cannot determine from the face
of the FAC that any of Plaintiff's claims are “barred as a matter
of law.” Sewell, 795 F.3d at 339. 5 Accordingly, Defendants’
motion to dismiss on statute of limitations grounds is denied.
5 Because factual issues regarding the length of
time for which the statute of limitations should
be tolled would remain in any case, the Court
does not consider the records of Plaintiff's Ad Seg
reviews submitted by Defendants with their motion
to dismiss, (see Dkt. No. 28-3), and confines its
consideration to the FAC.
B. PERSONAL INVOLVEMENT
Defendants argue that Plaintiff's claims must be dismissed
because the FAC fails to allege the personal involvement of
any Defendant in the alleged violation of his constitutional
rights. (Dkt. No. 28-1, at 13–25). Plaintiff responds that
the FAC sufficiently alleges the personal involvement of
each Defendant by alleging each Defendant's knowledge
of ongoing constitutional violations in solitary confinement.
(Dkt. No. 30, at 18–26).
It is well-settled that, to establish a defendant's individual
liability in a suit brought under Section 1983, a plaintiff must
show “the defendant's personal involvement in the alleged
constitutional deprivation.” Grullon v. City of New Haven,
720 F.3d 133, 138 (2d Cir. 2013) (citations omitted). A
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plaintiff must “allege a tangible connection between the acts
of a defendant and the injuries suffered.” Bass v. Jackson, 790
F.2d 260, 263 (2d Cir. 1986). The Second Circuit recently held
that the Colon test for showing the personal involvement of
supervisory officials was abrogated by the Supreme Court's
decision in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009). See Tangreti v. Bachmann, 983 F.3d
609, 618 (2d Cir. 2020); see also Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir. 1995). Specifically, the Second Circuit held
that “there is no special rule for supervisory liability” and
that “a plaintiff must plead and prove ‘that each Government-
official defendant, through the official's own individual
actions, has violated the Constitution.’ ” Tangreti, 983 F.3d
at 618 (quoting Iqbal, 556 U.S. at 676, 129 S.Ct. 1937). 6
Thus, the “factors” necessary to plead and establish a Section
1983 violation “ ‘will vary with the constitutional provision
at issue’ because the elements of different constitutional
violations vary.” Id. (quoting Iqbal, 556 U.S. at 676, 129 S.Ct.
1937). To state an Eighth Amendment claim, which requires
a mens rea of deliberate indifference, a plaintiff must allege
that the supervisor had “subjective knowledge of a substantial
risk of serious harm to an inmate and disregarded it.” See id.
at 616 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114
S.Ct. 1970, 128 L.Ed.2d 811 (1994)). To state a Fourteenth
Amendment claim for violation of procedural due process
rights, a plaintiff must allege a protected liberty or property
interest and that the plaintiff was deprived of that interest
without sufficient process. Shakur v. Selsky, 391 F.3d 106, 118
(2d Cir. 2004) (citing Kentucky Dep't of Corr. v. Thompson,
490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)).
6 Plaintiff is incorrect that Tangreti is “inapposite”
because there “the court set the standard for liability
under Section 1983 at the summary judgment stage,
not the motion to dismiss stage.” (See Dkt. No.
30, at 18). Tangreti makes clear that a plaintiff
“must plead and prove” that each individual
defendant violated the Constitution. 983 F.3d at 618
(emphasis added).
1. Acting Commissioner Annucci
*5 The FAC alleges that Annucci, as Acting Commissioner
of DOCCS, “is responsible for the overall management and
operation of DOCCS” and that his “responsibilities include
reviewing and approving the transfer of prisoners to DOCCS
Special Housing Units (‘SHU’), including administrative
Segregation (‘Ad Seg’) and the step-down program, under
a Central Office placement.” (Dkt. No. 24, at ¶ 12).
The FAC further alleges that, “[u]pon information and
belief, ANNUCCI approved [Plaintiff's] continued solitary
confinement for a period of time relevant to this action.” (Id.).
Plaintiff also alleges that Annucci “has final policy-making
and supervisory authority within DOCCS and is personally
involved in authorizing and maintaining the unconstitutional
policies and practices” challenged by Plaintiff, and that he “is
well aware” of the “unconstitutional risk of harm to inmates”
resulting from lengthy periods of solitary confinement. (Id.
¶¶ 12–13).
The Court finds that the FAC does not plausibly allege
constitutional claims under Section 1983 against Annucci.
Although the FAC alleges that Annucci approved Plaintiff's
solitary confinement at some point, it does not plausibly
allege facts indicating that Annucci had “subjective
knowledge of a substantial risk of serious harm” to Plaintiff
in particular and disregarded that risk. See Tangreti, 983
F.3d at 616. Moreover, given the abrogation of the Colon
factors previously used to establish supervisory liability,
the allegations regarding Annucci's policymaking authority
and general awareness of unconstitutional practices are
insufficient to adequately plead his subjective knowledge as
to Plaintiff's situation specifically. To the extent that Plaintiff
asks the Court to infer that Annucci was aware of and
personally involved in Plaintiff's injuries based simply on his
position as Acting Commissioner, that is “precisely the kind
of inference about supervisory officials held impermissible by
the Second Circuit in Tangreti.” Zielinski v. Annucci, No. 17-
cv-1042, ––– F. Supp. 3d. ––––, 2021 WL 2744684, at *8,
2021 U.S. Dist. LEXIS 124088 (N.D.N.Y. July 2, 2021).
Plaintiff also alleges that “Defendants” deprived him of
“a protected liberty interest in avoiding long-term solitary
confinement,” “meaningful and timely periodic review of
his detention in Ad Seg, as well as meaningful notice
of what he must do to earn release,” in violation of the
Fourteenth Amendment's Due Process Clause. (Dkt. No. 24,
¶ 114). However, the FAC contains no allegations regarding
Annucci's individual actions with respect to Plaintiff and
therefore does not plausibly allege his personal involvement
in the alleged violation of Plaintiff's procedural due process
rights. Cf. Jackson v. Annucci, No. 20-cv-02008, 2021 WL
2581340, at *5, 2021 U.S. Dist. LEXIS 117276 (S.D.N.Y.
June 23, 2021) (finding no personal involvement where
the allegations did not “connect Annucci to the specific
constitutional violations” alleged).
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Accordingly, Plaintiff's Section 1983 claims against Annucci
are dismissed.
2. Deputy Commissioner O'Gorman
The FAC alleges that O'Gorman, as Deputy Commissioner
of DOCCS, had “policy-making and supervisory authority
within DOCCS” and was “personally involved in authorizing
and maintaining the unconstitutional policies and customs”
at issue. (Dkt. No. 24, ¶ 14). The FAC further
alleges that, “[u]pon information and belief,” O'Gorman
“instituted policies that facilitated [Plaintiff's] placement
in Ad Seg, including the lack of meaningful review of
his status.” (Id.). Plaintiff alleges that O'Gorman was
“responsible for the overall management and operation
of the correctional institutions within DOCCS” and that
his “responsibilities included reviewing and approving the
transfer and assignment of prisoners to SHU, including
Ad Seg and the step-down program.” (Id. ¶ 15). Plaintiff
alleges that O'Gorman was the “final arbiter” of his
continued placement in solitary confinement, (id. (citing
7 N.Y.C.R.R. § 301.4(d)(3))), and that, upon information
and belief, O'Gorman “approved [Plaintiff's] continued
confinement in solitary confinement ... for a period of time
relevant to this action.” (Id.). O'Gorman’s approval “included
signing each review despite lacking any justification for
continuing” Plaintiff's detention or allowing Plaintiff's
continued placement in solitary without meaningful review.
(Id.). The FAC further alleges that O'Gorman, “on at least
one occasion since November 2017” and “as mandated by
New York regulations,” “reviewed, approved, and signed
off on the disciplinary review boards’ 7 continued decisions
to keep [Plaintiff] confined in solitary confinement, in
knowing disregard of the lack of penological justification
for such confinement.” (Id. ¶ 16). Finally, Plaintiff alleges
that O'Gorman, like Annucci, “has been on notice of the
constitutional violations suffered by inmates” subjected to
prolonged solitary confinement. (Id. ¶ 17).
7 This case does not implicate disciplinary hearings
or the disciplinary process. The FAC does not
explain what a “disciplinary review board” is, or its
relevance here.
*6 The Court finds that the FAC plausibly alleges
O'Gorman’s personal involvement in the alleged violations
of Plaintiff's Eighth and Fourteenth Amendment rights.
Contrary to Defendants’ argument that the FAC is “bereft
of factual detail” to support the allegation that O'Gorman
was personally involved, (see Dkt. No. 28-1, at 18), the FAC
specifically alleges that O'Gorman was the “final arbiter” of
Plaintiff's continued placement in solitary confinement and
that he therefore approved Plaintiff's continued placement “in
solitary confinement, including administrative segregation
and the step-down program,” (Dkt. No. 24, ¶ 15); see also
7 N.Y.C.R.R. § 301.4(d)(3) (providing that, where an inmate
in Ad Seg “is to receive central office review,” the deputy
commissioner, “[u]pon receipt of the materials from the
central office committee ... shall make the determination to
retain the inmate in or release the inmate from administrative
segregation”). From the allegations that O'Gorman approved
Plaintiff's continued placement in solitary confinement, it is
reasonable to infer that O'Gorman was subjectively aware
of the risk that Plaintiff's constitutional rights were being
violated by prolonged confinement in isolation, and that he
disregarded that risk by approving his continued placement.
See Farmer, 511 U.S. at 837, 114 S.Ct. 1970; see also
H'Shaka v. O'Gorman, 444 F. Supp. 3d 355, 376 (N.D.N.Y.
2020) (finding personal involvement of DOCCS defendants
where they “were directly involved in the decision to keep
Plaintiff in Ad Seg”). 8 Moreover, these allegations “connect”
O'Gorman to the review of Plaintiff's continued status in
solitary and the alleged violation of Plaintiff's procedural due
process rights. Cf. Jackson, 2021 WL 2581340, at *5, 2021
U.S. Dist. LEXIS 117276.
8 Defendants argue that Plaintiff's original complaint
alleged that Joseph Bellnier occupied the position
of Deputy Commissioner until his retirement in
September 2017, and that O'Gorman therefore
did not become Deputy Commissioner until after
that time. (Dkt. No. 28-1, at 19). However, “[i]t
is well established that an amended complaint
ordinarily supersedes the original, and renders it
of no legal effect.” Shields v. Citytrust Bancorp,
Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (citations
omitted). Accordingly, the Court does not credit
this argument and confines its analysis to the
allegations of the FAC.
Accordingly, the Court denies Defendants’ motion to dismiss
Plaintiff's Section 1983 claims against O'Gorman.
3. Superintendents Colvin and Thoms
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The FAC alleges that Colvin, the Superintendent at Five
Points, and Thoms, the Superintendent at Mid-State, “are
responsible for the care, custody, and safety of all prisoners
under their immediate jurisdiction.” (Dkt. No. 24, ¶ 18).
The FAC further alleges that Colvin and Thoms “managed
DOCCS facilities where [Plaintiff] was housed in SHU”
and had “policy-making and supervisory authority over
all operations” at their respective facilities. (Id. ¶ 19).
The FAC alleges that the DOCCS Superintendents “were
personally involved in the decision to confine inmates,
including [Plaintiff], to Ad Seg and SHU.” (Id.). More
specifically, Plaintiff alleges: “Under DOCCS regulations,
the Superintendent of each facility is required to make an
independent determination as to whether an inmate remains
in solitary confinement or is released from Ad Seg or the
step-down program.” (Id. (citing 7 N.Y.C.R.R. § 301.4(d)
(2) (providing that “the superintendent shall, except where
the superintendent or designee refers the matter to central
office,” “make a determination to retain the inmate in
or release the inmate from administrative segregation”))).
Plaintiff alleges that Colvin and Thoms “denied [Plaintiff] his
right to meaningful review of his Ad Seg status, approved
the disciplinary review boards’ 9 continued decisions to keep
[Plaintiff] in solitary confinement, and failed to provide
[Plaintiff] with adequate living conditions.” (Id.). The FAC
alleges that Colvin and Thoms “signed off on the perfunctory
Ad Seg reviews” “in knowing disregard of their lack of
justification.” (Id. ¶ 20). With respect to SHU, the FAC
alleges that DOCCS utilized a committee at each facility
to make recommendations to the Superintendent regarding
whether “a SHU prisoner should be granted a time-cut to
his SHU sentence under the Superintendent's discretionary
authority.” (Id. ¶ 23).
9 See supra Section IV.B.2., n.7.
At this stage, and for similar reasons as discussed
above regarding O'Gorman, the Court finds that the
FAC plausibly alleges Colvin and Thoms's personal
involvement in the alleged violations of Plaintiff's Eighth
and Fourteenth Amendment rights. While the Court agrees
with Defendants that this case does not implicate the
Superintendents’ authority to review disciplinary hearings
imposing punishment and that Section 301.4 does not on its
face address a Superintendent's responsibilities in connection
with the step-down program, (see Dkt. No. 28-1, at 20–
23), the FAC plausibly alleges the Superintendents’ personal
involvement in the decision to continue an inmate's placement
in Ad Seg and SHU. With respect to Ad Seg, Plaintiff
has alleged that Colvin and Thoms were required to make
independent determinations regarding his continued status
on Ad Seg and that they signed off on the reviews which
prolonged his solitary confinement. (Dkt. No. 24, ¶¶ 19–
20). It is therefore reasonable to infer that, because they
were involved in decisions approving Plaintiff's continued
solitary confinement, Colvin and Thoms were subjectively
aware of and disregarded the risk that Plaintiff's constitutional
rights were being violated. See Farmer, 511 U.S. at 837, 114
S.Ct. 1970. Moreover, by alleging that Colvin and Thoms
“signed off” on “perfunctory” reviews that deprived Plaintiff
of his right to meaningful review of his status in solitary
confinement and, with respect to SHU, had discretionary
authority to make time-cuts, the FAC plausibly alleges the
Superintendents’ personal involvement in the alleged denial
of Plaintiff's procedural due process rights. Cf. Jackson, 2021
WL 2581340, at *5, 2021 U.S. Dist. LEXIS 117276.
4. Director Venettozzi
*7 The FAC alleges that Venettozzi's authority as Special
Housing Unit Director includes “reviewing, affirming,
modifying, or reversing dispositions imposed at Tier III
Hearings.” (Dkt. No. 24, ¶ 21). The FAC also alleges that,
“[u]pon information and belief,” Venettozzi denied Plaintiff
meaningful review of his status in solitary confinement “on
at least one occasion since November 2017 by reviewing,
approving, and signing off on the disciplinary review boards’
repeated decisions” to keep him there. (Id. ¶ 22).
The Court finds that the FAC does not plausibly allege
Venettozzi's personal involvement in the alleged violations
of Plaintiff's constitutional rights. Although Plaintiff suggests
in his opposition that Venettozzi's authority over dispositions
imposed at Tier III Hearings extends to the hearing that
“resulted in [Plaintiff's] initial placement in Ad Seg,” (Dkt.
No. 30, at 23), this allegation is not contained in the FAC.
See Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006)
(“Generally, consideration of a motion to dismiss under
Rule 12(b)(6) is limited to consideration of the complaint
itself.”). Indeed, the FAC does not allege that Venettozzi was
in fact involved in Plaintiff's initial placement in solitary,
or that the initial placement in Ad Seg itself violated
Plaintiff's constitutional rights. The only other allegation
regarding Venettozzi is a conclusory statement that Venettozzi
at some point reviewed, approved, and signed off on the
“disciplinary review boards’ repeated decisions to keep
[Plaintiff] in solitary confinement.” (Id. ¶ 22). 10 This
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allegation is insufficient to plausibly allege facts indicating
that Venettozzi had “subjective knowledge of a substantial
risk of serious harm” to Plaintiff specifically and disregarded
that risk. See Tangreti, 983 F.3d at 616. The FAC also does
not plausibly allege Venettozzi's personal involvement in
the alleged violation of Plaintiff's procedural due process
rights. Cf. Abdul-Halim v. Bruyere, No. 19-cv-740, 2021 WL
3783087, at *3, 2021 U.S. Dist. LEXIS 161441 (N.D.N.Y.
Aug. 26, 2021) (noting that affirming the outcome of a prison
hearing is not sufficient to establish personal involvement).
10 See supra Section IV.B.2., n.7.
Accordingly, Plaintiff's Section 1983 claims against
Venettozzi are dismissed.
C. PROCEDURAL DUE PROCESS CLAIMS
Defendant argues that Plaintiff's procedural due process claim
should be dismissed because Plaintiff did not have a liberty
interest in not being placed in the step-down program and
therefore was not entitled to any review of his placement
there. (Dkt. No. 28-1, at 25–26). 11 Plaintiff responds that he
has a liberty interest in not being subjected to extended time in
solitary confinement, which includes the step-down program,
and that his time in the step-down program therefore triggered
procedural due process protections. (Dkt. No. 30, at 28–31).
11 Defendants’ argument does not address any
procedural due process claims accruing before
Plaintiff's move to the step-down program on
December 1, 2017, on the view that those claims are
time-barred. However, for the reasons discussed
above, supra Section IV.A, Defendants’ motion to
dismiss any claims on statute of limitations grounds
is denied.
To state a claim under Section 1983 for the denial of
procedural due process, a plaintiff must allege both the
existence of a protected liberty or property interest, and
that he or she was deprived of that interest without being
afforded sufficient process. Shakur, 391 F.3d at 118 (citing
Thompson, 490 U.S. at 460, 109 S.Ct. 1904). “[A] prisoner's
restricted confinement within a prison does not give rise to a
liberty interest, warranting procedural due process protection,
unless the conditions and duration ‘impose[ ] atypical and
significant hardship on the inmate in relation to the ordinary
incidents of prison life.’ ” Sealey v. Giltner, 197 F.3d
578, 583 (2d Cir. 1999) (quoting Sandin v. Conner, 515
U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)).
Confinement to segregated housing may trigger procedural
due process protections, depending on the length, frequency,
and conditions of the confinement. See Sims v. Artuz, 230
F.3d 14, 23 (2d Cir. 2000) (noting that the “duration and
the frequency of such deprivations are highly relevant to
whether the conditions of a plaintiff's confinement should be
considered atypical” (citations omitted)); see also Williams
v. Chuttey, No. 15-cv-1278, 2017 WL 9673722, at *4,
2017 U.S. Dist. LEXIS 144253 (N.D.N.Y. Sept. 5, 2017)
(noting that there is no “bright line rule that a certain period
of confinement in keeplock or a segregated housing unit
automatically gives rise to due process protection”), report-
recommendation adopted by 2018 WL 1413049, 2018 U.S.
Dist. LEXIS 45931 (N.D.N.Y. Mar. 21, 2018), aff'd, 767 F.
App'x 105 (2d Cir. 2019). A sufficiently long confinement,
even under normal SHU conditions, is “a sufficient departure
from the ordinary incidents of prison life to require procedural
due process protections under Sandin.” Colon v. Howard, 215
F.3d 227, 231 (2d Cir. 2000) (holding that procedural due
process protections were required for a confinement in SHU
of 305 days).
*8 At this stage, the Court finds that Plaintiff has adequately
alleged that he had a liberty interest in avoiding his
restricted confinement, whether in Ad Seg or the step-
down program, triggering procedural due process protections.
Plaintiff alleges that he was in solitary confinement from
March 6, 2020 until February 6, 2019, a total of almost nine
years. (Dkt. No. 24, ¶¶ 25, 32–38). Plaintiff was placed into
the step-down program on December 1, 2017 and remained
there for approximately 432 days before being released into
the general population. (Id.). Moreover, the FAC alleges
that “conditions in the step-down program were equally as
restrictive as in Ad Seg and constituted continued solitary
confinement.” (Id. ¶¶ 47–48). Plaintiff remained housed in
SHU while in the step-down program and was confined to
his cell for 23 hours a day. (Id. ¶¶ 49–50). Plaintiff alleges
that the “only minor difference” between Ad Seg and the
step-down program was that he received “an additional four
hours of inmate programming sessions each week,” although
he was “chained” during the sessions. (Id. ¶ 50). While an
inmate may not have a liberty interest in participating in
the step-down program to facilitate early release into the
general population, Animashaun v. Fischer, No. 19-cv-820,
2020 WL 374578, at *17, 2020 U.S. Dist. LEXIS 11093
(N.D.N.Y. Jan. 23, 2020), Plaintiff's allegations regarding
his confinement in SHU while in the step-down program,
for approximately 432 days, plausibly allege a “sufficient
departure from the ordinary incidents of prison life to require
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procedural due process protections,” Howard, 215 F.3d at 231
(holding procedural due process protections were triggered by
a typical SHU confinement lasting 305 days).
The Court also finds that Plaintiff plausibly alleged that he
was deprived of his liberty interest in avoiding long periods
of solitary confinement without sufficient due process.
Defendants cite to the fact that there are no allegations
about the step-down program in the due process “lack of
meaningful review” cause of action. (Dkt. No. 28-1, at 26).
But all of the earlier allegations in the FAC were expressly
incorporated into the due process cause of action, (Dkt. No.
24, ¶ 113), and this included Plaintiff's allegations that solitary
confinement is imposed in the step-down program “with no
requirement of reviews of any sort” and that he “spent over a
year in the step-down program without a meaningful review
of his status.” (Dkt. No. 24, ¶¶ 51–52; see also id. ¶ 74
(“[Plaintiff] received no reviews at all during his time in
the step-down program.”)). 12 Defendants have not addressed
what process was due or how due process was satisfied with
respect to Plaintiff's confinement in the step-down program.
Accordingly, without deciding what process Plaintiff was
entitled to while in the step-down program, the Court finds
that the allegations that he received no reviews of his status
for more than one year are sufficient to state a claim. See
Proctor v. LeClaire, 846 F.3d 597, 609 (2d Cir. 2017) (“It is
well established that whenever process is constitutionally due,
no matter the context, ‘it must be granted at a meaningful time
and in a meaningful manner.’ ” (citations omitted) (internal
brackets and punctuation omitted)).
12 In his opposition to Defendants’ motion to dismiss,
Plaintiff relies on 7 N.Y.C.R.R. § 316.3 to
suggest what process he was due while in the
step-down program. (Dkt. No. 30, at 30 (citing
7 N.Y.C.R.R. § 316.3(c) (providing that, upon
an inmate's admission to a step-down unit, “a
program management team shall” “develop an
individual rehabilitation plan” for the inmate and
“conduct periodic reviews of the incarcerated
individuals”))). However, Section 316.3 is a new
section of the regulations that was first effective
December 16, 2020, after Plaintiff was moved out
of the step-down program. Plaintiff has not pointed
to regulations pertaining to the step-down program
that were in effect during the relevant time period.
Accordingly, Defendants’ motion to dismiss Plaintiff's
procedural due process claims is denied.
D. QUALIFIED IMMUNITY
Defendants argue that they are entitled to qualified immunity
on Plaintiff's Section 1983 claims because there is no
controlling caselaw showing that Plaintiff had a “well-
established right to avoid transfer to the Step-Down program
upon release from Ad Seg” and no “rule” requiring
Defendants to review Plaintiff's status in the step-down
program. (Dkt. No. 28-1, at 27). Plaintiff responds that
Defendants violated his clearly established Eighth and
Fourteenth Amendment rights to be free from cruel and
unusual punishment, to be free from confinement that serves
no legitimate penological purpose, and to have meaningful
review of his detention in Ad Seg and the step-down program.
(Dkt. No. 30, at 26–28).
*9 “Qualified immunity protects public officials from
liability for civil damages when one of two conditions is
satisfied: (a) the defendant's action did not violate clearly
established law, or (b) it was objectively reasonable for the
defendant to believe that his action did not violate such law.”
Garcia v. Doe, 779 F.3d 84, 92 (2d Cir. 2015) (quoting Russo
v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007)); see
also generally Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity is an
affirmative defense on which defendants bear the burden of
proof. Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013). For
a qualified immunity defense asserted in a motion to dismiss
to be successful, the “facts supporting the defense [must]
appear on the face of the complaint,” and the plaintiff “is
entitled to all reasonable inferences from the facts alleged ...
that defeat the immunity defense.” McKenna v. Wright, 386
F.3d 432, 436 (2d Cir. 2004).
The Court finds that Defendants are not entitled to qualified
immunity at this early stage. Contrary to Defendants’
argument, the FAC does not appear to allege that Defendants
violated Plaintiff's rights by placing him in the step-down
program instead of the general population upon his release
from Ad Seg. Rather, Plaintiff challenges the total amount of
time he spent in solitary confinement—whether in Ad Seg or
the step-down program—as well as the lack of meaningful
and timely reviews of his status in solitary confinement. (E.g.,
Dkt. No. 24, ¶¶ 2–3, 39, 51–52). However, prisoners have
a clearly established right to be free from cruel and unusual
punishment, which includes extremely long confinements
in isolation and punishments or conditions which have no
legitimate penological justification. See, e.g., Gonzalez, 802
F.3d at 224 (noting that “whether incarceration in the SHU
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violates the Eighth Amendment” “depends on the duration
and conditions of the confinement”); Hope v. Pelzer, 536
U.S. 730, 737, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)
(holding that among the “unnecessary and wanton inflictions
of pain” forbidden by the Eighth Amendment are “those that
are totally without penological justification” (quotation marks
and citations omitted)). Moreover, it is well-settled in this
Circuit that a “period of confinement under typical SHU
conditions lasting longer than 305 days” triggers a protected
liberty interest and procedural due process protections.
Gonzalez, 802 F.3d at 223. The absence of a DOCCS
“rule” requiring Defendants to review Plaintiff's status in the
step-down program is not sufficient to establish qualified
immunity at the motion to dismiss stage.
Accordingly, the Court denies Defendants’ motion to
qualified immunity without prejudice to raising the defense
at a later time.
E. ELEVENTH AMENDMENT
Finally, Defendants argue that the Eleventh Amendment
requires dismissal of Plaintiff's claims “[t]o the extent
Plaintiff seeks damages against Defendants in their official
capacities.” (Dkt. No. 28-1, at 27). Plaintiff responds that he
does not seek damages against Defendants in their official
capacities, “but rather only seeks declaratory relief” against
the DOCCS Defendants. (Dkt. No. 30, at 28).
The Eleventh Amendment bars suits against state officials
in their official capacities unless Congress has abrogated the
state's sovereign immunity, the state has consented to suit, or
the plaintiff is “seeking injunctive relief against a state official
for an ongoing violation of law or the Constitution.” N.Y.
State Corr. Officers & Police Benevolent Ass'n, Inc. v. New
York, 911 F. Supp. 2d 111, 124–25 (N.D.N.Y. 2012) (citing
Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714
(1908)). Declaratory judgments are a form of injunctive relief
that may be allowed under the third exception, so long as
it is prospective. Id. at 129 (citations omitted). Declaratory
relief against an official sued in his official capacity is not
permitted, however, “when it would serve to declare only past
actions in violation of federal law.” Id.; see also Finch v. N.Y.
State Office of Children & Family Servs., 499 F. Supp. 2d 521,
538 n.138 (S.D.N.Y. 2007) (“[T]he Eleventh Amendment
‘does not permit judgments against state officers declaring
that they violated federal law in the past.’ ” (quoting Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993))).
*10 Here, Plaintiff alleges that he was released into the
general population of Mid-State on February 6, 2019 and
released from DOCCS custody on February 23, 2021. (Dkt.
No. 24, ¶¶ 31, 38). He does not allege that any of the
Defendants continues to violate his federal rights or will
do so in the future. Moreover, Plaintiff seeks retrospective
declaratory relief in the FAC. (Id. at 31 (asking the Court to
“[d]eclare that the Defendants’ acts and omissions violated
[Plaintiff's] constitutional rights”)). Accordingly, because
Plaintiff does not seek prospective declaratory relief, the
Court grants Defendants’ motion to dismiss Plaintiff's claims
brought against Defendants in their official capacities.
V. CONCLUSION
For these reasons, it is hereby
ORDERED that Plaintiff's claims against Defendants
Annucci and Venettozzi are DISMISSED; and it is further
ORDERED that Plaintiff's claims against Defendants in their
official capacities are DISMISSED; and it is further
ORDERED that Defendants’ motion to dismiss (Dkt. No. 28)
is otherwise DENIED.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 4775970
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Williams v. Annucci
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:20-CV-01417
Williams v. Annucci et al
— N.D.N.Y. Nov. 16, 2020 Docket
Case 9:25-cv-00903-GTS-MJK Document 17 Filed 11/26/25 Page 16 of 40

Williams v. Annucci
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (1)
1. Williams v. Annucci
2021 WL 4775970 , N.D.N.Y. , Oct. 13, 2021
Related References (2)
2. Williams v. O'Gorman
2024 WL 2208648 , N.D.N.Y. , May 16, 2024
3. Williams v. O'Gorman
2024 WL 4120440 , N.D.N.Y. , Sep. 09, 2024
Case 9:25-cv-00903-GTS-MJK Document 17 Filed 11/26/25 Page 17 of 40

Walker v. Fischer, Not Reported in F.Supp.2d (2012)
2012 WL 1029614
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2012 WL 1029614
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Tyrone WALKER, Plaintiff,
v.
Brian FISCHER, Commissioner of State of New
York Department of Correctional Services; Robert
Schattinger, Director of Nutritional Services, State
of New York Department of Correctional Services;
Dale Artus, Superintendent, Clinton Correctional
Facility; thomas lavalley, First Deputy Superintendent,
Clinton Correctional Facility; Max Patnode, Deputy
Superintendent of Programs, Clinton Correctional
Facility; Rabbi Alec H. Friedmann, Jewish Chaplain,
Clinton Correctional Facility; David Lucia, Lieutenant,
Clinton Correctional Facility; V. Johnson, Facility
Health Services Director, Clinton Correctional
Facility; Kevin Hicks, Sergeant, Clinton Correctional
Facility; R. Trudeau, Correctional Officer, Clinton
Correctional Facility; and Imam Assallami Fadl,
Chaplain, Clinton Correctional Facility, Defendants.
No. 9:10–cv–01431 (MAD/DEP).
|
March 26, 2012.
Attorneys and Law Firms
Tyrone Walker, Dannemora, NY, pro se.
Office of the New York State Attorney General, Megan M.
Brown, AAG, of Counsel, Albany, NY, for Defendants.
MEMORANDUM–DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
I. INTRODUCTION
*1 Plaintiff filed a pro se civil rights complaint against
a broad array of corrections employees, alleging several
deprivations of his civil rights. In his complaint, Plaintiff
sets forth several claims alleging violations of his rights
under the Religious Land Use and Institutionalized Persons
Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc–1(a), as well
as the First, Eighth, and Fourteenth Amendments to the
United States Constitution. In a February 27, 2012 Report,
Recommendation and Order, Magistrate Judge Peebles
recommended that the Court grant in part and deny in part
Defendants' motion to dismiss and deny Plaintiff's motion
for leave to amend his complaint and join additional parties
without prejudice to renewal.
Currently before the Court are Plaintiff's objections to
Magistrate Judge Peebles' February 27, 2012 Report,
Recommendation and Order and his renewed motion to
amend and supplement his complaint.
II. BACKGROUND
A. Plaintiff's complaint
Plaintiff is a prison inmate entrusted to the care and custody
of the New York State Department of Corrections and
Community Supervision (“DOCCS”). See Dkt. No. 1 at ¶
4. At all times relevant to his claim, Plaintiff was confined
in a special housing unit (“SHU”) cell within the Clinton
Correctional Facility (“Clinton”), located in Dannemora, New
York. See id. Plaintiff is a Muslim by faith, and suffers from
a gastrointestinal condition that causes him to experience
chronic constipation and severe internal hemorrhoids. See
id. at ¶ 18 and Exhibit “5.” For these conditions, Plaintiff
receives hemorrhoidal cream periodically, is provided with
Metamucil, and has been placed on a Controlled “A” High
Fiber Diet. See id. at ¶ 18 and Exhibit “1.”
Plaintiff's complaint, in large part, centers upon the alleged
failure of prison officials to meet his health and religious
dietary needs. Believing that the prescribed High Fiber Diet
did not provide him with adequate fiber, Plaintiff filed
Grievance No. CL–57436–08 on July 14, 2008, requesting
a Kosher or a Muslim Halal Diet, which, he claims, would
satisfy both his medical needs and religious beliefs. See
id. at ¶ 19. In response to his grievance, Plaintiff was
advised that the High Fiber Diet was created by the DOCCS
Division of Nutritional Services in accordance with DOCCS'
policies and complies with all state-wide mandates. See id.
As such, his grievance was denied. See id. and Exhibit “2.”
Plaintiff appealed the denial of his grievance, and his appeals
were rejected by both the facility superintendent and by the
DOCCS Central Office Review Committee (“CORC”). See
id. at ¶ 19.
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On July 29, 2008, Plaintiff received a communication from
Brian LeCuyer, a Nurse Administrator at Clinton, advising
him that if he was not satisfied with his existing diet, he
should complete a refusal form requesting that he be removed
from the diet and that he could speak with the appropriate
religious official regarding his desire for a Kosher or Muslim
Halal Diet. See id. at ¶ 20 and Exhibit “3.” On July 30,
2008, Plaintiff wrote to the Assistant Director of Nutritional
Services, reiterating his challenge to the adequacy of the High
Fiber Diet, as set forth in Grievance No. CL–57436–08. See
id. at ¶ 25 and Exhibit “4.” Plaintiff did not receive a response
to this communication. See id.
*2 On August 1, 2008, Plaintiff made a written request to
Defendant Rabbi Alec H. Friedmann, the Jewish Chaplain at
Clinton, requesting that he be placed on a Cold Alternative
Diet, or Kosher Diet, to address his health issues, explaining
that the diet would be consistent with his religious beliefs. See
id. at ¶ 22 and Exhibit “5.” On August 6, 2008, Defendant
Friedmann wrote back to Plaintiff, denying his request and
recommending that he instead accept a Religious Alternative
Meal (“RAM”). See id. In that communication, Defendant
Friedmann informed Plaintiff that the RAM would meet all of
the biblical requirements of his chosen religion as a Muslim.
See id. and Exhibit “5.”
In September of 2008, after complaining to several prison
officials concerning the diet denial, including Defendant
Dale Artus, Superintendent of Clinton, Defendant Max
Patnode, Clinton Superintendent of Programs, and Defendant
Brian Fischer, DOCCS Commissioner, Plaintiff voluntarily
removed himself from the Controlled “A” High Fiber Diet.
See id. at ¶¶ 23–30 and Exhibit “12.”
In his complaint, Plaintiff also complains that he was denied
the opportunity to observe weekly religious Jumuah sermons,
also referred to as Khutbah, by closed circuit television from
his SHU cell. See id. at ¶¶ 35–42. In an effort to obtain access
to those weekly religious sermons, Plaintiff filed grievances
on October 21, 2008, July 1, 2010, and September 21,
2010; sent a complaint letter on July 28, 2008 to Defendant
Artus; forwarded a written complaint to Defendant Fischer on
August 25, 2008; sent three letters, dated February 10, 2009,
February 23, 2009, and March 2, 2009, to Defendant Imam
Assallami Fadl; and lodged a complaint, dated September
21, 2010, with Clinton Superintendent, Defendant Thomas
LaValley. See id. and Exhibit “16–22.”
Plaintiff further asserts a retaliation claim, alleging that after
complaining about the failure of prison officials to provide
him with the requested diet and access to Jumuah sermons,
he was moved from his cell location to another, where he
experienced significantly worse conditions and was subjected
to excessively frequent cell searches. See id. at ¶¶ 43–50. 1
Plaintiff also claims that his due process rights were violated
in connection with his transfer to a different cell. See id.
1 Apparently, the cell searches, characterized by
Plaintiff as excessive, revealed the presence of
contraband on August 14, 18, 27, and 28, 2008,
September 4, and 19, 2008, and November 18,
2008, as evidenced by the issuance of contraband
receipts to Plaintiff. See Dkt. No. 1 at ¶ 59.
Finally, Plaintiff claims that, on October 2, 2010, he was
denied a request for a sweet breakfast 2 as part of his religious
services and that he was provided different food from that
offered to Muslim inmates in the general prison population
in celebration of the Ramadan Feast. See id. at ¶¶ 68–70.
Plaintiff claims that the religious feast provided to him in the
SHU consisted of rice, fish, mess hall cabbage, and mess hall
beans, and did not include other foods, such as lamb, bean pie,
and chicken, which were provided to Muslims in the general
population in celebration of the Ramadan Feast. See id. at ¶
70. In anticipation of the 2010 religious feast, and after having
been denied his sweet breakfast in 2009, Plaintiff wrote to
Defendant LaValley on September 22, 2010 concerning the
matter, hoping to preemptively avoid a similar denial for that
year. See id. at ¶ 68 and Exhibit “48.” On October 3, 2010,
after not receiving his sweet breakfast as requested, Plaintiff
filed a grievance and sent letters to Defendants Fischer and
LaValley, complaining of the failure to provide him with the
requested sweet breakfast. See id. at ¶ 70 and Exhibit “49.”
2 The sweet breakfast that Plaintiff refers to generally
consists of a banana, a donut, coffee cake, soda, and
other beverages. See Dkt. No. 1 at ¶ 70.
*3 Plaintiff commenced this action on November 23,
2010. See Dkt. No. 1. In his complaint, Plaintiff asserts
that his religious freedom rights under the RLUIPA and
First Amendment were infringed because of Defendants'
interference with his ability to practice his chosen religion,
including through denial of a sweet breakfast and proper feast,
the opportunity to observe Jumuah sermons, and the denial
of a Kosher Diet. See id. Plaintiff further claims that he was
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unlawfully retaliated against for voicing his complaints and
that he was subjected to cruel and unusual punishment. See id.
B. Magistrate Judge Peebles' Report, Recommendation
and Order
In his February 27, 2012 Report, Recommendation and
Order, Magistrate Judge Peebles recommended that the
Court dismiss several Defendants and several of Plaintiff's
claims. See Dkt. No. 40. First, Magistrate Judge Peebles
recommended that the Court grant Defendants' motion as
to Defendant Fischer for his lack of personal involvement,
but deny the motion as to Defendants Artus and LaValley
on the same ground. See id. at 16–18. Second, Magistrate
Judge Peebles recommended that the Court find that Plaintiff
failed to state a plausible First Amendment and RLUIPA
deprivation claim associated with the refusal of prison
officials to provide him with a Kosher Diet in lieu of the
prescribed Controlled “A” High Fiber Diet. See id. at 20.
Magistrate Judge Peebles found that “Plaintiff does not appear
to contend that his Controlled ‘A’ Diet does not comport with
his religious beliefs as a Muslim. Instead, he argues that the
Cold Alternative (Kosher) Diet would also be consistent with
his religious beliefs, and should be made available to him for
health reasons.” See id.
Third, Magistrate Judge Peebles found that Plaintiff was
also asserting an Eighth Amendment deliberate indifference
claim by alleging that the Controlled “A” High Fiber Diet
did not meet his medical needs. See id. at 21–22. He
recommended that the Court find that Plaintiff failed to allege
facts sufficient to establish either the objective or subjective
element of this claim. See id. at 23–27. Fourth, Magistrate
Judge Peebles found that “Plaintiff's allegations regarding
the denial of religious meals on two isolated occasions
are insufficient to meet his burden of establishing [that]
defendants' conduct infringes on his sincerely held religious
beliefs under either the First Amendment or the RLIUPA.”
See id. at 32 (citations omitted). Further, the Report found
that the fact that Plaintiff was not provided with the same
Ramadan Feast meal as inmates in the general population
does not trigger the protections of the First Amendment or
the RLUIPA. See id. at 33. Magistrate Judge Peebles did,
however, find that the portion of Plaintiff's free exercise
claim stemming from the alleged ongoing refusal of prison
officials to broadcast Jumuah sermons to his SHU cell “could
be regarded as a sufficiently serious deprivation to state a
plausible free exercise claim.” See id. at 33–34 (citations
omitted).
*4 Fifth, regarding Plaintiff's harassment claims against
Defendants Hicks and Trudeau, Magistrate Judge Peebles
found that most of Plaintiff's allegations amount to nothing
more than taunting or threats, which are insufficient to
support a cognizable section 1983 claim. See id. at 35–
36. Further, the Report found that “the mere allegation that
a false misbehavior report has been issued to an inmate
similarly does not implicate unconstitutional conduct.” See id.
at 36–37 (citations omitted). Sixth, Magistrate Judge Peebles
recommended that the Court find that Plaintiff's procedural
due process claims against Defendant Lucia should be
dismissed because the disciplinary penalty as a result of the
charges leveled against him was never imposed, Plaintiff was
not deprived of a cognizable liberty interest. See id. at 37–38.
Seventh, regarding Plaintiff's equal protection claim based
on Defendants' refusal to provide him with the requested
Kosher Diet, Magistrate Judge Peebles found that this claim
should be dismissed because Plaintiff's “complaint lacks any
factual allegations suggesting that the failure to provide [him]
with the requested Kosher Diet was based upon intentional or
purposeful discrimination directed at an identifiable suspect
class.” See id. at 39–40. Eighth, the Report recommended
that the Court find that it is premature to grant Defendants
qualified immunity at this juncture. See id. at 43.
Ninth, Magistrate Judge Peebles recommended that Plaintiff
be given leave to amend with respect to the claims for which
dismissal was recommended. See id. at 44. And, finally,
Magistrate Judge Peebles denied Plaintiff's motion for leave
to amend/join parties in light of his failure to satisfy the
requirements set forth in Local Rule 7.1(a)(4). See id. at
46. Specifically, Magistrate Judge Peebles held that Plaintiff
submitted a proposed pleading “which adds to, but does
not replace, his amended complaint[,]” and that “various of
the allegations set forth in the proposed amended complaint
purport to alter factual allegations contained within plaintiff's
initial complaint.” See id.
C. Plaintiff's objections
On March 16, 2012, the Court received Plaintiff's objections
to Magistrate Judge Peebles' Report, Recommendation and
Order. See Dkt. No. 41. In his objections, Plaintiff first
argues that Magistrate Judge Peebles erred in finding that the
denial of a Kosher Diet did not violate his First and Eighth
Amendment rights or his rights under the RLUIPA. See id. at
7. 3 Plaintiff claims that the Report incorrectly provides that
“ ‘Plaintiff does not appear to contend that his Controlled “A”
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Diet does not comport with his religious beliefs as a Muslim.’
“ See id. (quotation omitted). Citing to the exhibits attached to
his complaint, Plaintiff alleges that “ ‘[e]ating the High Fiber
Diet as it is, is a substantial burden on me because this food is
in violation of my religious belief, and it's not producing the
results I need to maintain my health.’ “ See id. (quoting Dkt.
No. 1–1 at Exhibit “4”). Plaintiff claims that the large amounts
of meat contained in the High Fiber Diet are not processed in
accordance with his religious beliefs, but meats contained in
Kosher or Halal (permissible) Muslim meals would be. See
id. at 8.
3 To avoid confusion, anytime the Court references a
specific page number for an entry on the docket, it
will cite to the page number assigned by the Court's
electronic filing system.
*5 Moreover, Plaintiff alleges that the fact that he remained
on the High Fiber Diet for over one year and that his
colonoscopy still showed that he had “several internal
hemorrhoids from his constipation and irregularity is proof
the High Fiber Diet was ineffective and inadequate.” See id.
at 9. Plaintiff claims that the Court should focus not only on
the “several internal hemorrhoids” when determining if he has
a serious medical need, but on the fact that the ineffective
treatment, causing these “perpetual” hemorrhoids, makes him
more likely to get colon cancer in the future. See id. at 10.
Next, Plaintiff claims that the RLUIPA and the First
Amendment's Free Exercise Clause provide that inmates must
be given meals that conform to their religious beliefs. See
id. at 11. Plaintiff alleges that, by denying him the only
religious meal options that met his dietary needs as well as his
religious beliefs violated his rights. See id. at 11–12. Finally,
Plaintiff asks that the Court reserve decision on Magistrate
Judge Peebles' Report, Recommendation and Order “until it
can be accessed with the facts contained in the amended and
supplemental complaint as a whole.” See id. at 12–14.
III. DISCUSSION
A. Standard of review
When a party files specific objections to a magistrate judge's
report-recommendation, the district court makes a “de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection
is made.” 28 U.S.C. § 636(b)(1). However, when a party
files “[g]eneral or conclusory objections or objections which
merely recite the same arguments [that he presented] to the
magistrate judge,” the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08–CV–322, 2011
WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and
footnote omitted). After the appropriate review, “the court
may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b) (1).
In a rule 12(b)(6) motion to dismiss, the court must accept
as true all of the factual allegations in the complaint, which
is deemed to include any written instrument attached to the
complaint as an exhibit, any materials incorporated into it
by reference, and any other documents that are integral to it.
See Sira v. Morton, 380 F.3d 57, 67 (2d Cir.2004) (citations
omitted). Moreover, the court must draw all reasonable
inferences from those factual allegations in the plaintiff's
favor. See Hayden v. Paterson, 594 F.3d 150, 160 (2d
Cir.2010) (quotation omitted). Although a court's review
of a motion to dismiss is generally limited to the facts
presented in the pleading, the court may consider documents
that are “integral” to that pleading, even if they are neither
physically attached to it nor incorporated by reference into
the pleading. See Mangiafico v. Blumenthal, 471 F.3d 391,
398 (2d Cir.2006) (quoting Chambers v. Time Warner, Inc. .,
282 F.3d 147, 152–53 (2d Cir.2002)). Dismissal will only be
granted by the court if it “appears beyond doubt that plaintiff
can prove no set of facts in support of the claim which would
entitle him to relief.” Branham v. Meachum, 77 F.3d 626, 628
(2d Cir.1996).
*6 So read, the complaint must include “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). A claim to relief is plausible on its face
“when the [P]laintiff pleads fact[s] ... that allow [ ] the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citation omitted).
When a dismissal is sought against a pro se litigant, the court
will afford the non-movant special solicitude. See Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006)
(quotation and citations omitted). The submissions of a pro se
litigant are to be construed liberally and interpreted “to raise
the strongest arguments that they suggest.” Id. at 475 (internal
quotation and citations omitted).
B. Plaintiff's First Amendment and RLUIPA claims
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The First Amendment to the United States Constitution
guarantees the right to free exercise of religion. See U.S.
Const. amend. I; Cutter v. Wilkinson, 544 U.S. 709, 719,
125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). As is true with
regard to the First Amendment generally, the free exercise
clause applies to prison inmates, subject to appropriate
limiting factors. See Ford v. McGinnis, 352 F.3d 582, 588
(2d Cir.2003) (holding that “[p]risoners have long been
understood to retain some measure of the constitutional
protection afforded by the First Amendment's Free Exercise
Clause” (citing Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct.
2800, 2804, 41 L.Ed.2d 495 (1974)). Thus, for example, under
accepted free exercise jurisprudence, inmates are guaranteed
the right to participate in congregate religious services under
most circumstances. See, e.g., Salahuddin v. Coughlin, 993
F.2d 306, 308 (2d Cir.1993) (citing cases).
The right of prison inmates to exercise their religious beliefs,
however, is not absolute or unbridled, but instead is subject
to valid penological concerns, including those relating to
institutional security. See O'Lone v. Estate of Shabazz, 482
U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987);
Salahuddin, 993 F.2d at 308. For example, a determination of
whether an inmate's constitutional rights have been infringed
by the refusal to permit his attendance at a religious service
hinges upon the balancing of the inmate's First Amendment
free exercise right against the institutional needs of officials
tasked with the increasingly daunting task of operating prison
facilities. This determination is “one of reasonableness, taking
into account whether the particular [act] affecting [the]
constitutional right ... is ‘reasonably related to legitimate
penological interests.’ “ Benjamin v. Coughlin, 905 F.2d 571,
574 (2d Cir.1990) (quoting Turner v. Safley, 482 U.S. 78, 89,
107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987)).
Undeniably, the reach of the First Amendment's free
exercise clause extends beyond mere attendance at congregate
religious services to other aspects of prison life including,
pertinently, that of an inmate's diet and participation in
religious meals. See McEachin v. McGuinnis, 357 F.3d 197,
204–05 (2d Cir.2004); Ford, 352 F.3d at 597. Ordinarily,
the Eighth Amendment establishes as a constitutional
minimum the requirement that inmates be provided with
nutritionally adequate meals; provided this threshold is
met, prison officials otherwise retain considerable discretion
in determining dietary constituents. See Word v. Croce,
169 F.Supp.2d 219, 226 (S.D.N.Y.2001). This requirement,
however, is on occasion narrowed by the First Amendment's
free exercise clause, which is broad enough to include an
inmate's “clearly established” right “to a diet consistent
with his or her religious scruples.” Ford, 352 F.3d at 597;
see also Bass v. Coughlin, 976 F.2d 98, 99 (2d Cir.1992).
“Courts have generally found that to deny prison inmates
the provision of food that satisfies the dictates of their faith
does unconstitutionally burden their free exercise rights.”
McEachin, 357 F.3d at 203.
*7 In the present matter, Plaintiff sent a letter to Defendant
Friedmann requesting that he be placed on the Cold
Alternative Diet. See Dkt. No. 1–1 at 27. Defendant
Friedmann responded that, because he is Muslim, he is
not eligible for the Cold Alternative Diet. See id. at
28. Defendant Friedmann, however, informed Plaintiff that
the Religious Alternative Meal (“RAM”) meets “Biblical
kosher standards,” and, therefore, “meets Moslem dietary
requirements.” See id. Defendant Friedmann went on to
explain to Plaintiff that the RAM diet is served in the Mess
Hall and that, if he is keeplocked, Plaintiff can “obtain it by
requesting the form from your Block CO.” See id. Despite
being presented with this option which would have satisfied
Plaintiff's religious dietary requirements, Plaintiff declined
the option.
“Courts have consistently held that DOCCS' Religious
Alternative Meal is sufficient to sustain Muslim prisoners'
good health without violating dietary laws and that a strictly
Halal diet is not required.” DeBlasio v. Rock, No. 9:09–
CV–1077, 2011 WL 4478515, *20 (N.D.N.Y. Sept.26, 2011)
(citing Muhammad, 98 F.Supp.2d at 343–44 (collecting
cases)). Even assuming that some parts of Plaintiff's High
Fiber Diet did not comport with his religious beliefs, 4 as he
claims in his objections, Plaintiff was offered a diet that meets
his religious dietary requirements, but declined the offer. As
such, Plaintiff has failed to state a plausible First Amendment
and RLUIPA deprivation claim associated with the refusal of
prison officials to provide him with a Kosher Diet in lieu of
the prescribed Controlled “A” High Fiber Diet.
4 The Court notes that Plaintiff's complaint does
not state that the Controlled “A” High Fiber diet
does not comport with his religious dietary needs.
Plaintiff does, however, make this claim in the
complaint letter he sent to Defendant Friedmann,
which he attached as an exhibit to his complaint.
See Dkt. No. 1–1 at 28.
Moreover, Magistrate Judge Peebles correctly found that
Plaintiff's allegations regarding the denial of religious meals
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—i .e., sweet breakfast—on two isolated occasions and his
contention that his Ramadan Feast menu was not identical
to the menu offered to non-SHU inmates are insufficient to
state a plausible claim that Defendants' conduct infringed
on his sincerely held religious beliefs under either the
First Amendment or the RLUIPA. See Deblasio, 2011 WL
4478515, at *18. Significantly, Plaintiff does not claim that
his Ramadan Feast menu was inconsistent with his religious
beliefs, just that it was different than that which was offered
to inmates in the general population. This claim clearly falls
far short of establishing a First Amendment or RLUIPA
violation.
The portion of Plaintiff's religious exercise claim growing out
of the alleged ongoing refusal of prison officials to broadcast
Jumuah sermons to his SHU cell, however, does plausibly
allege a sufficiently serious deprivation to state a free exercise
claim. See, e.g., Crawford v. Clarke, 578 F.3d 39, 43–44 (1st
Cir.2009). 5 As such, the Court finds that Magistrate Judge
Peebles correctly recommended that the Court should deny
Defendants' motion as to this claim as to Defendants Fadl,
Artus and LaValley.
5 The Court notes that, although Plaintiff has
alleged a plausible free exercise claim, courts
in the Second Circuit have granted motions
for summary judgment as to similar claims,
considering the burden placed on the prison
officials in accommodating SHU inmates, the
ability of SHU inmates to get counseling from a
member of the ministerial staff on a weekly basis,
and the prison's legitimate-penological interest in
denying these requests. See, e.g., Smith v. Artus,
No. 9:07–CV–1150, 2010 WL 3910086, *22–*23
(N.D.N.Y. Sept.30, 2010).
C. Eighth Amendment claims
*8 Plaintiff's claims relating to his meals are also asserted
under the Eighth Amendment. The Eighth Amendment
explicitly prohibits the infliction of “cruel and unusual
punishment.” U.S. Const. amend. VIII. This prohibition
includes any “unnecessary and wanton infliction of pain”
on those who have been convicted of crimes. Hathaway
v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (citations
omitted). Nevertheless, the United States Supreme Court
has recognized that not “every injury” a prisoner suffers
“translates into constitutional liability for prison officials.”
Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994).
Prisons are required under the Eighth Amendment to provide
for the basic human needs of those incarcerated, including
“nutritionally adequate food that is prepared and served under
conditions which do not present an immediate danger to
the health and well being of the inmates who consume it.”
Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983) (per
curium) (citation and internal quotation marks omitted). The
deprivation must be sufficient to create a serious danger to
the health of the inmate. See, e.g., Beckford v. Portuondo, 151
F.Supp.2d 204, 213 (N.D.N.Y.2001) (finding a deprivation
of two of three meals per day for eight days created an
issue of material fact sufficient for Eighth Amendment claim
to survive summary judgment); Moss v. Ward, 450 F.Supp.
591, 596–597 (W.D.N.Y.1978) (finding the denial of food
for four consecutive days and reduced food for three days
thereafter sufficient to violate prisoner's Eighth Amendment
rights). Where a particular diet is medically required, denial
of a smaller number of meals may be sufficient in some
circumstances. See Abdush–Shahid v. Coughlin, 933 F.Supp.
168, 180 (N.D.N.Y.1996) (citing Robles, 725 F.2d at 15–16).
In the present matter, Plaintiff's Controlled “A” High Fiber
Diet was prescribed for him by the medical personnel at
Clinton. Although Plaintiff's complaint alleges that he suffers
from constipation and internal hemorrhoids, the medical
records demonstrate that he received constant medical
attention for those conditions. See Dkt. No. 1–1 at Exhibit
“1.” Magistrate Judge Peebles correctly concluded that the
complaint does not allege facts from which one could
conclude that his medical conditions are sufficiently serious
to meet the objective requirements of an Eighth Amendment
claim. See Lowman v. Perlman, No. 9:06–CV–422, 2008
WL 4104554, *5 (N.D.N.Y. Aug.29, 2008); Cabassa v.
Gummerson, No. 01–CV–1039, 2006 WL 1559215, *9–*10
(N.D.N.Y. Mar.30, 2006); Kendall, 2004 WL 1752818, at *6.
Further, even assuming that Plaintiff has met the objective
element, Plaintiff has failed to allege facts suggesting
a plausible claim that any Defendants were subjectively
indifferent to his serious medical needs. Although Plaintiff
complains that the Controlled “A” High Fiber Diet does not
meet his needs because of the lack of peanut butter and the
reduction of bread from twelve slices to eight, as well as
the lack of desserts, Plaintiff does not point to any adverse
impact upon his health other than to allege, in conclusory
terms, that his condition requires that he be provided with
food with a higher fiber content than what he receives under
the Controlled “A” High Fiber Diet. Defendant Johnson,
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however, responded to Plaintiff's requests by stating that
he already receives a diet high in fiber, which is further
supplemented by Metamucil and, therefore, that Plaintiff did
not require additional fiber for his medical condition. See
Taylor v. Chalom, No. 9:10–CV–1494, 2011 WL 6942891,
*8 (N.D.N.Y. Dec. 13, 2011) (holding that when a plaintiff
alleges nothing more than a mere disagreement with the
treatment he received, the plaintiff has failed to satisfy
the subjective element of the deliberate indifference test)
(citations omitted).
*9 Based on the foregoing, the Court finds that Magistrate
Judge Peebles corrected recommended that the Court
should grant Defendants' motion as to Plaintiff's Eighth
Amendment claims. At best, Plaintiff alleges malpractice
against Defendants, which is insufficient to support an Eighth
Amendment violation.
D. Plaintiff's remaining claims
In addition to the claims discussed above, Plaintiff also
asserted harassment claims against Defendants Hicks and
Trudeau, a due process claim against Defendant Lucia, and
an equal protection claim based upon Defendants' refusal to
provide him with the requested Kosher Diet. Magistrate Judge
Peebles recommended that the Court dismiss each of these
claims and Plaintiff did not object to his recommendation.
Having reviewed these causes of action and Magistrate Judge
Peebles' Report, Recommendation and Order, the Court finds
that Magistrate Judge Peebles' correctly determined that
Plaintiff failed to allege facts that plausibly state these causes
of action.
E. Amendment of the Complaint
Following Defendants' motion to dismiss, Plaintiff moved
for leave to amend his complaint and to join two additional
parties. See Dkt. No. 36. In his motion, Plaintiff seeks to
add Corrections Captain Facteau and Sergeant Delutis as
new defendants, and to assert additional claims, including a
retaliation claim based upon events not recounted in his initial
complaint, and several of which he claims have occurred since
the commencement of this action. See id.
Magistrate Judge Peebles denied Plaintiff's motion for
leave to amend because of his failure to comply with
Local Rule 7.1(a)(4). See Dkt. No. 40 at 46. Specifically,
Magistrate Judge Peebles found that Plaintiff's proposed
amended pleading simply adds to, but does not replace his
amended complaint and that Plaintiff's proposed amended
complaint alters factual allegations contained within his
initial complaint. See id. As such, Magistrate Judge Peebles
recommended that the Court deny Plaintiff's motion to amend
and/or supplement his complaint, and to join additional
parties, without prejudice to renewal upon filing a pleading in
conformity with the Local Rules. See id. at 47.
On the same day that Plaintiff filed his objections to
Magistrate Judge Peebles' Report, Recommendation and
Order, Plaintiff renewed his motion for leave to file an
amended and supplemental verified complaint and to add
additional defendants. See Dkt. No. 42. Despite Magistrate
Judge Peebles' instruction regarding the requirements for
filing an amended complaint, Plaintiff again fails to abide by
the Local Rules. The renewed proposed amended pleading
is nearly identical to the proposed amended pleading that
Magistrate Judge Peebles found was not in conformity with
the Local Rules. Compare Dkt. No. 36–2; with Dkt. No.
42–2. Plaintiff's renewed proposed amended pleading again
fails to supersede the original pleading in all respects,
and incorporates his original pleading. See Dkt. No. 42–
2. Plaintiff's renewed proposed amended pleading begins at
paragraph eighty (“80”)—where the original complaint ends
—and asks the Court to change facts contained in the original
complaint. See id. at ¶¶ 82–82.
*10 A motion to amend a pleading is governed by Rule
15(a) of the Federal Rules of Civil Procedure, which states
that “[t]he court should freely give leave [to amend] when
justice so requires.” Fed.R.Civ.P. 15(a); Foman v. Davis, 371
U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The
Local Rules of the Northern District of New York provide,
in pertinent part, that amended pleadings must be complete
pleadings which will supersede the original in all respects.
See N.D.N.Y. L.R. 7.1(a)(4). The Local Rules further state
that a “party shall not incorporate any portion of its prior
pleading into the proposed amended pleading by reference.”
Id. One of the purposes of the requirement that an amended
complaint be itself a complete pleading, is to ensure that all of
the allegations asserted against the defendant(s) are contained
in a single document, thereby reducing the likelihood that
a party will overlook one or more allegations against him.
Moreover, this requirement eliminates the confusing nature of
“piecemeal” amended complaints. See Chapdelaine v. Keller,
No. 9:95–CV–1126, 1999 WL 34998130, *1 (N.D.N.Y.
Sept.28, 1999) (citation omitted).
Based on the foregoing, the Court finds that Plaintiff's
renewed proposed amended pleading is not a proper pleading
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because it is not a complete pleading which completely
replaces his original complaint, as required by the Local
Rules. As such, the Court denies Plaintiff's motion to amend
and/or supplement his complaint without prejudice to renewal
upon filing a complaint that is in conformity with the Local
Rules.
IV. CONCLUSION
After carefully reviewing the entire record in this matter,
the parties' submissions, Magistrate Judge Peebles' Report,
Recommendation and Order and the applicable law, and for
the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Peebles' February 27, 2012
Report, Recommendation and Order is ADOPTED in its
entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion to dismiss is GRANTED
in part and DENIED in part; and the Court further
ORDERS that Plaintiff's motion to amend and/or supplement
his complaint is DENIED without prejudice to renewal; and
the Court further
ORDERS that all further pretrial matters are referred to
Magistrate Judge Peebles; and the Court further
ORDERS that the Clerk of the Court shall serve
this Memorandum–Decision and Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 1029614
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-00903-GTS-MJK Document 17 Filed 11/26/25 Page 25 of 40

Walker v. Fischer
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:10cv01431
WALKER v. FISCHER ET AL
— N.D.N.Y. Nov. 29, 2010 Docket
Case 9:25-cv-00903-GTS-MJK Document 17 Filed 11/26/25 Page 26 of 40

Walker v. Fischer
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (1)
1. Walker v. Fischer
2012 WL 1029614 , N.D.N.Y. , Mar. 26, 2012
Related References (2)
2. Walker v. Artus
2013 WL 5464909 , N.D.N.Y. , Sep. 30, 2013
3. Walker v. Artus
998 F.Supp.2d 18 , N.D.N.Y. , Feb. 21, 2014
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Santiagocruz v. Doe #1, Not Reported in Fed. Supp. (2021)
2021 WL 5629097
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2021 WL 5629097
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jose SANTIAGOCRUZ, Plaintiff,
v.
John DOE #1, Officer, Great Meadow
Correctional Facility, et al., Defendants.
9:21-CV-0806 (TJM/ML)
|
Signed 12/01/2021
Attorneys and Law Firms
JOSE SANTIAGOCRUZ, Plaintiff, pro se, 19-A-2161, Five
Points Correctional Facility, Caller Box 119, Romulus, NY
14541.
DECISION and ORDER
THOMAS J. MCAVOY, Senior United States District Judge
I. INTRODUCTION
*1 Pro se plaintiff Jose Santiagocruz (“Plaintiff”)
commenced this civil rights action asserting claims arising
out of his confinement at Great Meadow Correctional Facility
(“Great Meadow C.F.”). Dkt. No. 1 (“Compl.”). Plaintiff
also filed a motion for the appointment of counsel. Dkt. No.
4. In a Decision and Order filed on October 26, 2021 (the
“October Order”), the Court reviewed the sufficiency of the
Complaint in accordance with 28 U.S.C. § 1915(e) and 28
U.S.C. § 1915A. Dkt. No. 12. Based upon that review, the
Court found that Plaintiff's Eighth Amendment failure-to-
protect claims against John Does #1 through #5, Correctional
Officers at Great Meadow C.F., survived sua sponte review.
Id. Pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d. Cir. 1997)
(per curiam), the Court directed the Attorney General's Office
attempt to ascertain the full name of the defendants. Id. The
Court also denied Plaintiff's motion for counsel. Id.
On November 24, 2021, the Attorney General's Office
responded to the Court's directive. Dkt. No. 16.
Presently before the Court are the following motions: (1)
Plaintiff's request for preliminary injunctive relief (Dkt. No.
14); (2) Plaintiff's motion for reconsideration of the Court's
denial of Plaintiff's motion for counsel (Dkt. No. 15); and (3)
Plaintiff's motion to “add on to the complaint” (Dkt. No. 15).
II. DISCUSSION
A. Motion for Preliminary Injunction
1. Legal Standard
Preliminary injunctive relief “is an extraordinary and drastic
remedy, one that should not be granted unless the movant, by
a clear showing, carries the burden of persuasion.” Moore v.
Consol. Edison Co. of N.Y., 409 F.3d 506, 510 (2d Cir. 2005)
(quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)).
“In general, district courts may grant a preliminary injunction
where a plaintiff demonstrates ‘irreparable harm’ and meets
one of two related standards: ‘either (a) a likelihood of success
on the merits, or (b) sufficiently serious questions going to the
merits of its claims to make them fair ground for litigation,
plus a balance of the hardships tipping decidedly in favor of
the moving party.’ ” Otoe-Missouria Tribe of Indians v. N.Y.
State Dep't of Fin. Servs., 769 F.3d 105, 110 (2d Cir. 2014)
(quoting Lynch v. City of New York, 589 F.3d 94, 98 (2d Cir.
2009) (internal quotation marks omitted)). However, when
the moving party seeks a “mandatory preliminary injunction
that alters the status quo by commanding a positive act,” the
burden is even higher. Cacchillo v. Insmed, Inc., 638 F.3d
401, 405-06 (2d Cir. 2011) (citing Citigroup Global Mkts.,
Inc. v. VCG Special Opportunities Master Fund Ltd., 598
F.3d 30, 35 n.4 (2d Cir. 2010) (internal quotation marks
omitted)). A mandatory preliminary injunction “should issue
only upon a clear showing that the moving party is entitled to
the relief requested, or where extreme or very serious damage
will result from a denial of preliminary relief.” Id. (quoting
Citigroup Global Mkts., 598 F.3d at 35 n.4) (internal quotation
marks omitted); see Tom Doherty Assocs. v. Saban Enter.,
Inc., 60 F.3d 27, 33-34 (2d Cir. 1995) (explaining that a
plaintiff seeking a mandatory injunction must make a “clear”
or “substantial” showing of a likelihood of success on the
merits of his claim).
*2 The district court has wide discretion in determining
whether to grant preliminary injunctive relief. Moore, 409
F.3d at 511. “In the prison context, a request for injunctive
relief must always be viewed with great caution so as not
to immerse the federal judiciary in the management of state
prisons.” Fisher v. Goord, 981 F.Supp. 140, 167 (W.D.N.Y.
1997) (citing Farmer v. Brennan, 511 U.S. 825, 846-47
(1994)) (other citations omitted).
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“A showing of irreparable harm is the single most important
prerequisite for the issuance of a preliminary injunction.”
Bisnews AFE (Thailand) Ltd. v. Aspen Research Grp.
Ltd., 437 Fed. App'x 57, 58 (2d Cir. 2011) (summary
order) (citation omitted). Generally an alleged violation of
a constitutional right creates a presumption of irreparable
harm. Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996).
However, speculative, remote or future injury is not the
province of injunctive relief. Los Angeles v. Lyons, 461 U.S.
95, 111-12 (1983). Rather, a plaintiff seeking to satisfy the
irreparable harm requirement must demonstrate that “absent
a preliminary injunction [he or she] will suffer an injury that
is neither remote nor speculative, but actual and imminent,
and one that cannot be remedied if a court waits until the end
of trial to resolve the harm.” Bisnews AFE (Thailand), 437
Fed. App'x at 58 (quoting Faiveley Transport Malmo AB v.
Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009)); Garcia v.
Arevalo, No. 93-CV-8147, 1994 WL 383238, at *2 (S.D.N.Y.
June 27, 1994) (“It is well settled that an allegation of the
mere possibility of irreparable harm is insufficient to justify
the drastic remedy of preliminary injunction.... A party who
seeks the extraordinary remedy of a preliminary injunction
must show the alleged irreparable harm to be imminent, not
remote or speculative, and the alleged injury to constitute
one that is incapable of being fully remedied by monetary
damages.” (citations omitted)). A finding of irreparable harm
cannot be based solely on past conduct. Haden v. Hellinger,
No. 9:14-CV-0318, 2016 WL 589703 at *1 (N.D.N.Y. Feb.
11, 2016).
Furthermore, “[t]o prevail on a motion for preliminary
injunctive relief, the moving party must establish a
relationship between the injury claimed in the motion and the
conduct giving rise to the complaint.” Candelaria v. Baker,
No. 00-CV-0912, 2006 WL 618576, at *3 (W.D.N.Y. Mar. 10,
2006) (citations omitted).
2. Analysis
Plaintiff, who is presently incarcerated at Five Points
Correctional Facility (“Five Points C.F.”), seeks an order
“to mandate [he] be separated from general population at
[his] current facility.” Dkt. No. 14. Plaintiff alleges “DOCCS
employees keep placing me in harms way as retaliation for
me filing my lawsuit.” Id.
As discussed supra, the defendants herein are John Does
#1 through #5, Correctional Officers at Great Meadow C.F.
To the extent that Plaintiff seeks injunctive relief against
individuals who are not defendants in this action, injunctive
relief is available against non-parties only under very limited
circumstances, none of which are present here. See Fed. R.
Civ. P. 65(d)(2); Doctor's Associates, Inc. v. Reinert & Duree,
P.C., 191 F.3d 297, 302-03 (2d Cir. 1999); United States
v. Regan, 858 F.2d 115, 120 (2d Cir. 1988); see also In re
Rationis Enterprises, Inc. of Panama, 261 F.3d 264, 270
(2d Cir. 2001) (“A court may not grant a final, or even an
interlocutory, injunction over a party over whom it does not
have personal jurisdiction.”).
*3 Even assuming Plaintiff sought relief against the
proper individual(s), he has failed to plead facts suggesting
irreparable harm. Plaintiff does not allege that he suffered any
harm as a result of his housing assignment. Rather, Plaintiff's
belief that he will likely suffer retaliation in the future is
purely speculative. “[A]llegations of future injury without
more do not establish a real threat of injury.” See Slacks v.
Gray, No. 9:07-CV-0501(NAM/GJD), 2008 WL 2522075,
at *1 (N.D.N.Y. June 25, 2008) (citing Garcia v. Arevalo,
No. 93-CV-8147, 1994 WL 383238, at *2 (S.D.N.Y. June 27,
1994)).
Moreover, even if the Court were to assume that Plaintiff
could allege irreparable harm, Plaintiff has failed to
demonstrate, with evidence, a likelihood of success on the
merits of his underlying claims because the allegations in the
motion are unrelated to the underlying action. In the operative
pleading, Plaintiff asserts Eighth Amendment failure-to-
protect claims related to an attack by an unidentified assailant
on May 20, 2021 at Great Meadow C.F. See generally, Compl.
In the present motion, Plaintiff alleges First Amendment
retaliation claims against unidentified DOCCS employees at
Five Points C.F. Thus, Plaintiff cannot establish a likelihood
of success on the merits and Plaintiff's request for relief is
denied. See Allen v. Brown, No. 96-CV-1599 (RSP/GJD),
1998 WL 214418, at *4 (N.D.N.Y. Apr. 28, 1998) (denying
request for injunctive relief where allegations in application
for such relief were unrelated to claims asserted in the
complaint); Mitchell v. New York State Dep't of Corr. Srvs.,
No. 06-CV-6278, 2011 WL 5326054, at *3 (W.D.N.Y. Nov. 3,
2011) (denying relief where the facts underlying the request
for injunctive relief are essentially unrelated to the underlying
facts of the claims in the action, except for the fact that they
arise in the prison context).
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The Court has reviewed Plaintiff's motion thoroughly and
with due regard for his status as a pro se litigant. Plaintiff's
failure to substantiate his allegations of irreparable harm with
evidence in admissible form or to demonstrate a likelihood of
success on the merits of his underlying claims warrants denial
of his motion. See Ivy Mar Co. v. C.R. Seasons Ltd., 907 F.
Supp. 547, 561 (E.D.N.Y. 1995) (“[B]are allegations, without
more, are insufficient for the issuance of a preliminary
injunction.”); Hancock v. Essential Res., Inc., 792 F. Supp.
924, 928 (S.D.N.Y. 1992) (“Preliminary injunctive relief
cannot rest on mere hypotheticals.”). 1
1 Plaintiff may pursue claims against the individuals
responsible for the alleged wrongdoing through
DOCCS’ administrative procedures and, if
necessary, by means of a properly filed action.
B. Motion for Reconsideration
In July 2021, Plaintiff filed a motion for the appointment of
counsel. Dkt. No. 4. In the October Order, the Court denied
Plaintiff's motion for counsel holding:
At this preliminary stage, the Court is
unable to determine whether Plaintiff
meets the threshold requirement that
at least some aspects of his claim are
“likely to be of substance.” Hodge, 802
F.2d at 61. Plaintiff has not submitted
any evidence supporting his claims
and Plaintiff's request for counsel is
not accompanied by documentation
that substantiates his efforts to obtain
counsel from the public and private
sector. See Terminate Control Corp.
v. Horowitz, 28 F.3d 1335, 1341
(2d Cir. 1994); Cooper v. Sargenti
Co., Inc., 877 F.2d 170, 172, 174
(2d Cir. 1989). Even if the Court
were to assume, for purposes of
this motion, that Plaintiff's position
seems likely to be of substance,
the relevant factors weigh decidedly
against granting Plaintiff's motion at
this time. For example: (1) the case
does not present novel or complex
issues; and (2) it appears to the Court
as though, to date, Plaintiff has been
able to effectively litigate this action.
The Court is unaware of any special
reasons why appointment of counsel
at this time would be more likely
to lead to a just determination of
this litigation. See Terminate Control
Corp., 28 F.3d at 1341; Hodge, 802
F.2d at 61.
*4 Dkt. No. 12 at 11.
Now, Plaintiff seeks reconsideration of the portion of the
October Order that denied his motion for counsel. See Dkt.
No. 15 at 1-3. Plaintiff claims his “primary spoken language
is Spanish” and “up until this point plaintiff has had the
assistance of the law library clerks” to read his legal work.
Id. However, Plaintiff “presently” does not have access to
the law library, clerks, or any legal assistance because he
is “segregated” in Involuntary Protective Custody (“IPC”).
Id. Plaintiff asserts he cannot comprehend, respond, read,
or write any motions for this action and that he requires
assistance to obtain investigation to support his claims. Id.
“A court may justifiably reconsider its previous ruling if: (1)
there is an intervening change in the controlling law; (2) new
evidence not previously available comes to light; or (3) it
becomes necessary to remedy a clear error of law or to prevent
manifest injustice.” Delaney v. Selsky, 899 F.Supp. 923, 925
(N.D.N.Y. 1995) (citing Doe v. New York City Dep't of Soc.
Servs., 709 F.2d 782, 789 (2d Cir. 1983)). “The standard for
granting a motion for reconsideration is strict[.]” Shrader v.
CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995).
A motion for reconsideration “should not be granted where
the moving party seeks solely to relitigate an issue already
decided.” Id. Furthermore, a motion for reconsideration is
not to be used for “presenting the case under new theories,
securing a rehearing on the merits, or otherwise taking a
‘second bite at the apple.’ ” Sequa Corp. v. GBJ Corp., 156
F.3d 136, 144 (2d Cir. 1998). In the interests of justice, the
Court will grant Plaintiff's request for reconsideration.
The Court has thoroughly reviewed Plaintiff's motion for
counsel, with consideration of the factors outlined in the
October Order, and finds no change of circumstances that
would warrant appointment of counsel pro bono for Plaintiff
at this time. Plaintiff's inability to “read or write English”
has not prevented him from effectively litigating this matter
thusfar. Indeed, the motion for reconsideration is ten pages
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in length and includes legal arguments, citations to caselaw,
and various requests for relief. See Dkt. No. 15. Moreover,
Plaintiff's motion for reconsideration is not accompanied by
documentation that substantiates his efforts to obtain counsel
from the public and private sector.
Therefore, for the reasons set forth herein and in the October
Order, Plaintiff's motion for counsel is denied, without
prejudice. Plaintiff is advised that if the case survives
dispositive motions and proceeds to trial, Plaintiff may file a
new motion for the appointment of counsel.
C. Motion to Amend Complaint
Plaintiff moves to “add to the complaint” and attempts to
“provide a clearer understanding of the facts.” Dkt. No. 15
at 4. In his submission, Plaintiff asserts new facts and claims
against individuals not named in the original Complaint. Id.
at 4-10.
The filing of amended pleadings is governed by Rule 15 of
the Federal Rules of Civil Procedure. A party may amend, as
of right, if the pleading is one to which a responsive pleading
is required, 21 days after service of a responsive pleading
or 21 days after service of a motion under Rule 12(b), (e),
or (f), whichever is earlier. Fed. R. Civ. P. 15. An amended
complaint is intended to replace and supercede in its entirety
the previous complaint. Once accepted for filing, the amended
complaint becomes the operative pleading, and the original
complaint is no longer considered. See Dluhos v. Floating &
Abandoned Vessel, 162 F.3d 63, 68 (2d Cir. 1998) (“[I]t is well
established that an amended complaint ordinarily supersedes
the original, and renders it of no legal effect.”) (citing Shields
v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)).
This requirement is buttressed by the Local Rules of Practice
of this District (“Local Rules”), which provide, in pertinent
part, that amended pleadings must be complete pleadings
which will supersede the original pleading in all respects.
See N.D.N.Y.L.R. 15.1. The Local Rules further state that a
“party shall not incorporate any portion of its prior pleading
into the proposed amended pleading by reference.” Id. One of
the purposes of the requirement that an amended complaint
be itself a complete pleading, is to ensure that all of the
allegations asserted against the defendants are contained in
a single document, thereby reducing the likelihood that a
party will overlook one or more allegations against him.
See Walker v. Fischer, No. 10-CV-1431 (MAD/DEP), 2012
WL 1029614, at *10 (N.D.N.Y. Mar. 26, 2012) (citation
omitted). This requirement eliminates the confusing nature
of “piecemeal” amended complaints. See Chapdelaine v.
Keller, 9:95-CV-1126 (HGM/GS), 1999 WL 34998130, at
*1 (N.D.N.Y. Sep. 28, 1999). In other words, an amended
complaint must include all of the allegations against each of
the defendants against whom the case is going forward so that
the amended complaint may stand alone as the sole complaint
in the action. “While we have insisted that the pleadings
prepared by [pro se litigants] be liberally construed ... we
have never suggested that procedural rules in ordinary civil
litigation should be interpreted so as to excuse mistakes by
those who proceed without counsel.” McNeil v. U.S., 508 U.S.
106 (1993).
*5 Rule 10 of the Federal Rules of Civil Procedure requires
that a pleading contain a caption which names “all the parties”
and further provides, in part, that
[a] party must state its claims or
defenses in numbered paragraphs,
each limited as far as practicable to
a single set of circumstances. A later
pleading may refer by number to
a paragraph in an earlier pleading.
If doing so would promote clarity,
each claim founded on a separate
transaction or occurrence—and each
defense other than a denial—must be
stated in a separate count or defense.
Fed. R. Civ. P. 10(b). A party not named in the caption of the
complaint is not a party to the action. Abbas v. U.S., No. 10-
CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug. 1, 2014)
(the failure to name a party in the caption makes it “infeasible
for the Court to determine which of the individual officers
mentioned in the body of the complaint should be deemed to
be defendants to which claims).
A complaint that fails to comply with these Rules “presents
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).
The submission presently before the Court is not in
compliance with the Federal Rules or N.D.N.Y. Local Rule
15.1. See Dkt. No. 15 at 4-10. As explained above, Plaintiff
may not submit an amended complaint and at the same
time proceed with the original complaint. Compliance with
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this Court's local rules is “not merely technical in nature.”
See Cusamano v. Sobek, 604 F.Supp.2d 416, 508 (N.D.N.Y.
2009).
At this juncture, the Court will not accept the facts and
allegations set forth in Plaintiff's letter (Dkt. No. 15 at 4-10) as
the Amended Complaint or the operative pleading. Plaintiff is
directed to, within SIXTY DAYS of the within Order, submit
a proposed amended pleading that complies with this Court's
Local Rules.
D. Service Issues
On November 24, 2021, the Court received a response
to the October Order from the Office of the New York
State Attorney General. See Dkt. No. 16. The response was
forwarded to Plaintiff at Five Points C.F. See id. at 2. It is
ordered that Plaintiff has sixty days from the date of this
Order to file an amended complaint that correctly identifies
the John Doe defendants in his Complaint. In an effort to
assist Plaintiff in drafting the proposed amended complaint,
the Clerk shall forward to Plaintiff a copy of his Complaint,
without exhibits (Dkt. No. 1). Plaintiff may identify the
Doe defendants by handwriting the name in the appropriate
locations throughout on the copy of the Complaint and
indicate in the caption of the document that it is the Amended
Complaint. Once Plaintiff has made these changes to the
copy of the operative pleading, captioned it as his Amended
Complaint, and signed the proposed pleading, he should
submit it to the Court for review. Plaintiff is advised that, if
he should fail to identify the Doe Defendants, his action is
subject to dismissal without prejudice.
III. CONCLUSION
WHEREFORE, it is hereby
*6 ORDERED that Plaintiff's motion for a preliminary
injunction (Dkt. No. 14) is DENIED; and it is further
ORDERED that Plaintiff motion for reconsideration (Dkt.
No. 15) is GRANTED in part and DENIED in part; and
it is further
ORDERED that Plaintiff's motion to amend the Complaint
(Dkt. No. 15) is DENIED; and it is further
ORDERED that Plaintiff has sixty days from the date of this
Order to file an amended complaint that correctly identifies
the John Doe defendants in his Complaint. The Clerk of the
Court is directed to provide Plaintiff a copy of his Complaint;
and it is further
ORDERED that the Clerk of the Court shall serve a copy of
this Decision and Order on Plaintiff in accordance with the
Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 5629097
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Santiagocruz v. Doe #1
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Filings (1)
Title PDF Court Date Type
1. Docket 9:21-CV-00806
Santiagocruz v. Doe #1 et al
— N.D.N.Y. July 15, 2021 Docket
Case 9:25-cv-00903-GTS-MJK Document 17 Filed 11/26/25 Page 33 of 40

Santiagocruz v. Doe #1
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History (7)
Direct History (2)
1. Santiagocruz v. Doe #1
2021 WL 12354177 , N.D.N.Y. , Oct. 26, 2021
On Reconsideration in Part
2. Santiagocruz v. Doe #1
2021 WL 5629097 , N.D.N.Y. , Dec. 01, 2021
Related References (5)
3. Santiagocruz v. Doe #1
2021 WL 12354176 , N.D.N.Y. , Aug. 12, 2021
4. Santiagocruz v. Doe #1
2022 WL 292033 , N.D.N.Y. , Feb. 01, 2022
5. Santiagocruz v. Doe #1
2022 WL 22951109 , N.D.N.Y. , Nov. 30, 2022
6. Santiagocruz v. Doe #4
2023 WL 9600956 , N.D.N.Y. , Dec. 15, 2023
Report and Recommendation Adopted by
7. Santiagocruz v. Gordon
2024 WL 532499 , N.D.N.Y. , Feb. 08, 2024
Case 9:25-cv-00903-GTS-MJK Document 17 Filed 11/26/25 Page 34 of 40

Santiagocruz v. Doe #1
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-00903-GTS-MJK Document 17 Filed 11/26/25 Page 35 of 40

Allevato v. Howard, Not Reported in Fed. Supp. (2022)
2022 WL 42436
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 42436
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael F. ALLEVATO, Petitioner,
v.
David HOWARD, Superintendent, Respondent.
9:21-CV-1159 (GTS)
|
Signed 01/05/2022
Attorneys and Law Firms
MICHAEL F. ALLEVATO, Petitioner, pro se, 16-B-2208,
Woodbourne Correctional Facility, 99 Prison Road, P.O. Box
1000, Woodbourne, NY 12788.
DECISION and ORDER
GLENN T. SUDDABY, United States Chief District Judge
*1 Petitioner Michael Allevato seeks federal habeas corpus
relief pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition
(“Pet.”). 1 Petitioner argues that he is entitled to relief because
his counsel was constitutionally ineffective. Pet. at 5-11.
1 For the sake of clarity, citations to petitioner's
filings refer to the pagination generated by CM/
ECF, the Court's electronic filing system.
On November 9, 2021, the Court directed petitioner to
file an affirmation explaining why the statute of limitations
should not bar his petition. Dkt. No. 6, Decision and Order
(“November Order”). In compliance with the November
Order, petitioner timely filed an affirmation, as well as several
supporting exhibits. Dkt. No. 7, Affirmation; Dkt. No. 7-1,
Exhibits; Dkt. No. 10, Supporting Affidavit; Dkt. No. 11,
Letter in Support. Respondent was directed to answer the
petition. Dkt. No. 8, Decision and Order. The deadline is
presently scheduled for March 1, 2022.
On December 14, 2021, the Court received petitioner's
motion for a preliminary injunction. Dkt. No. 12, Motion.
Respondent was directed to file a response. Text Notice dated
12/16/21. Respondent recently requested, and was granted, an
extension; therefore, the response is due on or before January
14, 2022. Dkt. No. 13, Letter Motion, Dkt. No. 16, Text Order.
Presently pending before the Court are petitioner's motions to
(1) remove and join claims from a state court action into the
present habeas petition and (2) include an additional claim in
the pending action based upon new evidence. Dkt. Nos. 14 &
15, Motions.
In the first motion, as further explained by petitioner's
second letter motion, petitioner intends to add claims to his
pending federal action from his recent state court action
which alleged various constitutional violations. Dkt. No. 14
at 10-48. Specifically, petitioner also claims that he is entitled
to federal habeas relief because (1) his Fourth Amendment
rights were violated when he was subjected to a warrantless,
eavesdropping, controlled telephone call without properly
waiving his Miranda rights, Dkt. No. 14 at 10-25; (2)
petitioner's guilty plea was coerced and induced by fraud,
id. at 11-12, 38-48; (3) his due process rights were violated
when petitioner was denied a prompt preliminary hearing
and probable cause determination, id. at 25-26; and (4) his
grand jury proceedings were deficient because the evidence
the grand jury used to indict petitioner was procured by
unconstitutional means, id. at 29-38. Petitioner also asserts
that new evidence – sworn affidavits from his mother and
step-father – demonstrates his actual innocence; however, it is
unclear whether petitioner intends this argument to serve as a
reason for equitable tolling, a new claim, or both. Id. at 27-28.
In the second motion, petitioner first clarifies that he wants
to join the claims from his state action to his federal habeas
petition. Dkt. No. 15 at 1. However, it is unclear whether the
state court actions have been fully appealed – and therefore
exhausted – or if they are still pending in state court.
Additionally, petitioner argues that new evidence – annual
reports from law enforcement agencies – demonstrates that
the New York State Attorney General has failed to comply
with Congressional mandates and has failed to monitor,
investigate, or bring legal action against local counties, such
as Otsego, for non-compliance. Id. at 6.
*2 Liberally construing both of petitioner's pending
motions, it appears that petitioner is attempting to amend
his federal habeas petition. To the extent that petitioner
intends these motions serve as his leave to file an amended
petition, such motions are denied because they do not meet the
requirements set forth in the Federal Rules of Civil Procedure
or the Court's Local Rules of Practice. 2
Case 9:25-cv-00903-GTS-MJK Document 17 Filed 11/26/25 Page 36 of 40

Allevato v. Howard, Not Reported in Fed. Supp. (2022)
2022 WL 42436
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
2 Petitioner failed to attach a complete proposed
amended petition to any of his motion papers.
This is a sufficient reason to deny petitioner's
motion to amend as it precludes the Court from
“examin[ing] the exact amendment that it is
being asked to permit[;] ... ensur[ing] that all of
the allegations asserted against the [respondents]
are contained in a single document[;] ... [and]
eliminat[ing] the confusing nature of piecemeal
amended pleadings.” See Cusamano v. Sobek, 604
F.Supp.2d 416, 508 (N.D.N.Y. 2009) (holding that
compliance with this Court's local rules is “not
merely technical in nature.”) (internal quotation
marks and citations omitted).
The filing of amended pleadings is governed by Rule 15 of
the Federal Rules of Civil Procedure. An amended petition is
intended to replace and supercede in its entirety the previous
petition. The Federal Rules are buttressed by the Local Rules
of Practice of this District (“Local Rules”), which provide, in
pertinent part, that
A party moving to amend a pleading
pursuant to Fed. R. Civ. P. 14, 15,
19-22 must attach an unsigned copy
of the proposed amended pleading
to its motion papers. Except if the
Court otherwise orders, the proposed
amended pleading must be a complete
pleading, which will supercede the
original pleading in all respects.
N.D.N.Y.L.R. 15.1(a). The Local Rules further state that a
“party shall not incorporate any portion of its prior pleading
into the proposed amended pleading by reference.” Id. “While
we have insisted that the pleadings prepared by [pro se
litigants] be liberally construed ... we have never suggested
that procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
without counsel.” McNeil v. U.S., 508 U.S. 106, 133 (1993).
Therefore, the Court will grant petitioner leave to file a
properly-formatted motion to amend his petition. Petitioner
is directed to, within THIRTY (30) DAYS of this Order,
submit a motion to amend that complies with both the Federal
and Local Rules. Any proposed amended petition must be
a complete pleading which sets forth all of the claims
petitioner seeks to assert in this action against the person
named as the respondent.
WHEREFORE, it is hereby
ORDERED that petitioner's motions, Dkt. Nos. 14 & 15, be
DENIED WITHOUT PREJUDICE; and it is further
ORDERED that petitioner is granted thirty (30) days leave to
file a motion to amend. Petitioner must submit a proposed
amended petition setting forth all of the claims that he
wants the Court to consider, including the claims now
raised in the petition and the new claims that petitioner
wants to add to the petition. The Clerk is directed to send
petitioner a blank section 2254 petition for that purpose.
In his proposed amended petition, petitioner must state the
name and location of the court that entered the judgment
of conviction, the date of the judgment of conviction, the
offense(s) for which he was convicted, and the length of
the sentence received. He must specify all grounds upon
which the amended petition is based, and the facts supporting
each ground, in the proposed amended petition. Petitioner
must also state the date(s) upon which he filed any court
proceedings in which he challenged his conviction, including
the name and location of the court(s) in which he filed each
application and the date(s) upon which the court(s) denied
each application. He must also demonstrate either that his
proposed amended petition is timely, or that it relates back to
his original petition; and it is further
*3 ORDERED that upon the filing of petitioner's motion to
amend, the Clerk is directed to return the file to the Court for
further review; and it is further
ORDERED that the Clerk serve a copy of this Decision and
Order upon respondent. Respondent shall not be required to
file and serve an answer relating to the petition, Dkt. No. 8,
until further order of the Court; and it is
ORDERED that if petitioner fails to timely submit a motion
to amend his petition, the original petition, Dkt. No. 1, will
remain the operative pleading; and it is further
ORDERED that the Clerk serve a copy of this Decision and
Order upon petitioner in accordance with the Local Rules.
All Citations
Not Reported in Fed. Supp., 2022 WL 42436
Case 9:25-cv-00903-GTS-MJK Document 17 Filed 11/26/25 Page 37 of 40

Allevato v. Howard, Not Reported in Fed. Supp. (2022)
2022 WL 42436
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End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-00903-GTS-MJK Document 17 Filed 11/26/25 Page 38 of 40

Allevato v. Howard
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:21-CV-01159
Allevato v. Howard
— N.D.N.Y. Oct. 22, 2021 Docket
Case 9:25-cv-00903-GTS-MJK Document 17 Filed 11/26/25 Page 39 of 40

Allevato v. Howard
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (6)
Direct History (1)
1. Allevato v. Howard
2022 WL 42436 , N.D.N.Y. , Jan. 05, 2022
Related References (5)
2. People v. Allevato
170 A.D.3d 1264 , N.Y.A.D. 3 Dept. , Mar. 07, 2019
Leave to Appeal Denied by
3. People v. Allevato
34 N.Y.3d 949 , N.Y. , Sep. 18, 2019
AND Habeas Corpus Dismissed by
4. Allevato v. Howard
2022 WL 2954365 , N.D.N.Y. , July 26, 2022
5. Allevato v. Howard
2021 WL 5197183 , N.D.N.Y. , Nov. 09, 2021
6. Allevato v. Howard
2022 WL 247722 , N.D.N.Y. , Jan. 27, 2022
Case 9:25-cv-00903-GTS-MJK Document 17 Filed 11/26/25 Page 40 of 40