Perkins v. Schriro et al

Filing 75

MEMORANDUM AND ORDER granting 69 Motion to Dismiss. For the reasons stated in the attached Memorandum and Order, the court grants defendants motion in its entirety. Plaintiffs Amended Complaint is dismissed without prejudice to amend. Plaintiff must file his second amended complaint within 45 days of this Memorandum and Order. The court notes that the second amended complaint completely replaces plaintiffs previous complaints. See Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977). Plaintiff should designate his newly amended complaint as a Second Amended Complaint. Failure to file a second amended complaint in 45 days will result in dismissal with prejudice. Defendants are respectfully directed to serve a copy of this Memorandum and Order on plaintiff. Ordered by Judge Kiyo A. Matsumoto on 2/10/2016. (Gong, LiJia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
GREGORY PERKINS,
MEMORANDUM & ORDER

Plaintiff,
- against –

14-CV-2670(KAM)(LB)

CARLTON NEWTON “Warden”; MR. BROWN
“Grievance Coordinator”; CLARKE #4399;
BOYD #18468; WEISE #18492; CARMEN
CAMPBELL BENNETT; KATHY ANN DOCKER; C.O.
MICHAEL TURNBULL #9879; CITY OF NEW YORK.
Defendants.
----------------------------------------X
MATSUMOTO, United States District Judge:
Plaintiff Gregory Perkins commenced this action pro se
pursuant to 42 U.S.C. § 1983 (“§ 1983”) against the City of New
York (the “City”), Warden Carlton Newton, Grievance Coordinator
Brown, Correctional Officer Clarke, Correctional Officer Boyd,
Correctional Officer Weise, Nurse Carmen Campbell Bennett, Nurse
Kathy Ann Docker, and Correctional Officer Michael Turnbull
(collectively, the “defendants”) alleging violations of his
constitutional rights.
2014.)

(Compl., ECF No. 1, filed April 24,

Plaintiff amended his complaint on September 9, 2014.

(Am. Compl., ECF No. 37.)

Plaintiff alleges violations of his

Eighth Amendment rights due to the conditions of his
confinement; violations of his First, Fifth and Fourteenth
Amendment rights related to inmate grievance procedures; and
municipal liability pursuant to 42 U.S.C. § 1983.

Presently before the court is defendants’ motion to
dismiss the Amended Complaint for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6).
69.)

(ECF No.

By memorandum dated February 17, 2015, plaintiff opposed

the motion.

(ECF No. 71.)

For the reasons set forth below,

defendants’ motion is granted.
BACKGROUND
The following facts are taken from plaintiff’s Amended
Complaint and are assumed to be true for the purposes of the
court’s evaluation of the motion to dismiss.
I.

Therapeutic Diet
Plaintiff has a therapeutic diet due to allergies to

chili, tomato, pineapple, and peanut butter.
501.)

(Am. Compl. at

According to plaintiff’s patient summary report, the

allergies cause itchiness and hives.

(Id.)

Plaintiff alleges

that when he was housed at the Brooklyn Detention Complex
(“BKDC”), on each occasion when he traveled outside of the
facility for court appearances, for example to the Manhattan
Detention Center, Otis Bantum Correctional Center, and Robert N.
Davoren Complex, he was not provided with his therapeutic diet
meal upon his return.

(Id. at 6.)

The Amended Complaint

alleges that plaintiff was deprived of his therapeutic diet meal

1

Due to inconsistent page numbering and because some of plaintiffs’ exhibits
have two heading stamps, the court clarifies that the page numbers referenced
herein correspond to the ECF heading stamp for ECF document number 37.

2

on four specific instances.

(See id. at 52 (plaintiff was not

provided with special diet meal on February 11, 2014, which was
the “third time”); id. at 56 (plaintiff was not provided with
therapeutic diet upon return from a court date and “was not able
to eat”).
Plaintiff also describes an instance when he was held
in a cell connected to a courtroom in the Southern District of
New York, and Correctional Officer Weise was responsible for
providing food to plaintiff.

(Id. at 7.)

When plaintiff

informed Correctional Officer Weise of his peanut butter allergy
and requested a cheese sandwich, Correctional Officer Weise
informed plaintiff that he did not have any more cheese
sandwiches.

(Id.)

Plaintiff told Correctional Officer Weise

that he was entitled to a meal, to which Correctional Officer
Weise responded that “he would see what he could do” and sat
down. (Id.)

Plaintiff alleges that over the course of several

hours Correctional Officer Weise made no attempt to provide
plaintiff with an appropriate meal.
II.

(Id.)

Medical Care
On the morning of December 8, 2013 between 8:00 a.m.

and 9:00 a.m. at BKDC, Correctional Officer Boyd went to
plaintiff’s housing unit for the purpose of escorting plaintiff
to the medical clinic to obtain medication under direct
observation.

(Id. at 7.)

Correctional Officer Boyd stood at

3

the gate of plaintiff’s housing unit and called plaintiff’s
name.

(Id.)

Plaintiff responded that he was in the lavatory.

(Id.)

Plaintiff alleges that Correctional Officer Boyd became

frustrated and told him to hurry up, and by the time plaintiff
reached the gate, Correctional Officer Boyd had departed.

(Id.)

Plaintiff then spoke to Correctional Officer Martin who called
down to the medical clinic, and plaintiff was informed that
“they would return for [him].”

(Id.)

At approximately 12 p.m.

or 1 p.m., plaintiff spoke with the area captain and explained
the circumstances.

(Id. at 8.)

Plaintiff alleges that the area

captain called Correctional Officer Boyd who told the area
captain that plaintiff had already received his medication.
(Id.)

Plaintiff denied receiving his medication.

(Id.)

At approximately 3:00 p.m., plaintiff was escorted to
the medical clinic where Correctional Officer Boyd, Correctional
Officer Michael Turnbull, and Nurse Carmen Campbell Bennett were
present2.

(Id.)

Nurse Bennett told plaintiff that he had

already received his medication and showed him the medication
log indicating that plaintiff received medication on December 7,
2013 at 9:00 p.m. and on December 8, 2013 at 12:00 midnight.

2

In his Amended Complaint, plaintiff only identifies Correctional Officer
Boyd by name and identifies the other two individuals as Correctional Officer
John Doe and Nurse Jane Doe #1. (Am. Compl. at 8.) Defendants filed a
letter providing the names of the John Doe and Jane Does. (ECF No. 57.) In
his opposition, plaintiff requests the court to amend his complaint replacing
the names of the Doe defendants. (Pl.’s Opp. to Defs.’ Mot. to Dismiss
(“Pl.’s Opp.”) at 6, ECF No. 71.) The court deems the complaint amended and
substitutes the names of the Doe defendants herein.

4

(Id.)

Plaintiff alleges, however, that he did not receive his

medication at midnight on December 8, 2013.

(Id.)

Plaintiff

then asked Nurse Bennett for the name of the nurse who had
documented plaintiff’s receipt of medication at midnight and
Nurse Bennett refused plaintiff’s request.

(Id.)

Plaintiff

also asked for Nurse Bennett’s name and she refused to provide
her name.

(Id.)

Nurse Kathy Ann Dockery then approached and

stated to plaintiff, “I understand you are acting like a little
girl.”

(Id.)

Nurse Dockery retrieved the medication log, which

plaintiff alleges had been altered.

(Id.)

Plaintiff pointed

out that the medication log had been altered, and Nurse Dockery
allegedly became frustrated, began to walk away, and stated that
she had initialed the document and “so what; prove it.”
III.

(Id.)

Inmate Grievance Procedure
Correctional Officer Clarke and Mr. Brown, the

grievance coordinator, work together in the grievance office at
BKDC, and plaintiff alleges that they “cherry pick” the
grievances they “choose to deal with,” while the remainder are
“completely ignored and destroyed.”

(Id. at 6.)

Plaintiff

alleges that the grievances that pass the scrutiny of
Correctional Officer Clarke and Mr. Brown are forwarded to the
warden’s office, and that the warden “has not one time dignified
a grievance with a response.”

(Id.)

Plaintiff has forwarded

copies of his grievances that were deemed non-grievable to the

5

Board of Corrections and to the warden and has received one or
two letters from the commissioner’s office stating that his
complaint has been received and is being forwarded to the
appropriate unit for investigation.

(Id.)

Plaintiff alleges

that thereafter, he “never heard from [the relevant departments]
again.”

(Id.)

On February 20, 2014, plaintiff spoke with

Correctional Officer Clarke and asked her if she received the
grievance that he had submitted.

(Id.)

Correctional Officer

Clarke stated that she did receive the grievance and thereafter,
“[a]s in many other grievances, this particular too has
disappeared.”

(Id.)

Plaintiff filed a grievance in connection with the
incident relating to his medication on December 8, 2013 and
alleges that he “was met with verbal aggression from Officer
Clarke and Mr. Brown.”

(Id. at 9.)

Plaintiff also filed a

medical complaint, which was “disregarded as harmless error.”
(Id.)
STANDARD OF REVIEW
I.

Motion to Dismiss Pursuant to Rule 12(b)(6)
In reviewing plaintiff’s complaint, the court is

mindful that the submissions of a pro se litigant must be
construed liberally and interpreted “to raise the strongest
arguments that they suggest.”

Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotations

6

and citations omitted).

Nonetheless, a court “should not

hesitate to dismiss a pro se complaint if it fails altogether to
satisfy the pleading standard.”

Henry v. Davis, No. 10 Civ.

7575, 2011 WL 3295986, at *2 n.5 (S.D.N.Y. Aug. 1, 2011).
Under Federal Rule of Civil Procedure 12(b)(6), to
survive a motion to dismiss, a complaint “must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (internal quotations omitted); Fed. R. Civ.
P. 12(b)(6).

This plausibility standard is guided by “[t]wo

working principles.”

Id.

First, although “a court must accept

as true all of the allegations contained in a complaint,” that
“tenet” “is inapplicable to legal conclusions,” and
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”

Id.

“Second, only a complaint that states a plausible claim for
relief survives a motion to dismiss,” and “[d]etermining whether
a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.”

Id. at 679.

DISCUSSION
Defendants move to dismiss the Amended Complaint in
its entirety.

The court addresses plaintiff’s claims for

deprivation of his therapeutic diet and inadequate medical care

7

in violation of plaintiff’s Eighth Amendment rights, and denial
of due process in violation of his First, Fifth and Fourteenth
Amendment rights in turn.3
I.

Conditions of Confinement and Medical Care
The conditions of a prisoner’s confinement and

adequacy of his medical care can give rise to an Eighth
Amendment violation.

See Phelps v. Kapnolas, 308 F.3d 180, 185

(2d Cir. 2002); Johnson v. Wright, 412 F.3d 398, 403 (2d Cir.
2005).

“In such cases, a prisoner may prevail only where he

proves both an objective element—that the prison officials’
transgression was ‘sufficiently serious’—and a subjective
element—that the officials acted, or omitted to act, with a
‘sufficiently culpable state of mind,” i.e., with ‘deliberate
indifference to inmate health or safety.’”

Phelps, 308 F.3d at

185 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

3

Defendants contend that plaintiff failed to exhaust his administrative
remedies with respect to his allegations of deprivation of therapeutic meals
and denial of due process, as required under the Prison Litigation Reform Act
(“PLRA”). See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect
to prison conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
exhausted.”). However, because the court finds that the Amended Complaint
fails to state a claim, there is no need to reach the issue of whether
plaintiff exhausted his administrative remedies. See 42 U.S.C. § 1997e(c)(2)
(“In the event that a claim is, on its face, frivolous, malicious, fails to
state a claim upon which relief can be granted, or seeks monetary relief from
a defendant who is immune from such relief, the court may dismiss the
underlying claim without first requiring the exhaustion of administrative
remedies.”).

8

A. Therapeutic Diet
“[T]o establish the objective element of an Eighth
Amendment claim, a prisoner must prove that the conditions of
his confinement violate contemporary standards of decency.”
Phelps, 308 F.3d at 185 (citations omitted).

While the

Constitution “does not mandate comfortable prisons,” prisoners
may not be denied “the minimal civilized measure of life's
necessities.”

Rhodes v. Chapman, 452 U.S. 337, 347-49 (1981).

Under the Eighth Amendment, prisoners may not be denied of their
“basic human needs—e.g., food, clothing, shelter, medical care,
and reasonable safety.”

Helling v. McKinney, 509 U.S. 25, 32

(1993) (citation and internal quotation marks omitted).

Nor may

prison officials expose prisoners to conditions that “pose an
unreasonable risk of serious damage to [their] future health.”
Id. at 35.
With respect to the “subjective” requirement, the
Supreme Court has explained that “a prison official cannot be
found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.”

Farmer, 511 U.S. at 837.

“This ‘deliberate indifference’ element is equivalent to the

9

familiar standard of ‘recklessness’ as used in criminal law.”
Phelps, 308 F.3d at 186 (quoting Farmer, 511 U.S. at 839–40).
The court finds that plaintiff has failed adequately
to allege that defendants acted with deliberate indifference.
Plaintiff has failed to allege any plausible facts that any
official was aware of, or should have been aware of, a
substantial risk of serious harm if plaintiff was deprived of a
single meal, albeit on four isolated occasions.

Although the

court is sympathetic to plaintiff’s dietary allergies and
plaintiff may have adequately alleged a negligent state of mind
on the part of defendants, plaintiff has failed to allege facts
to meet the standard of deliberate indifference to the risk
serious harm as required by 42 U.S.C. § 1983.

Consequently,

plaintiff’s claim of deprivation of his therapeutic diet in
violation of 42 U.S.C. § 1983 is dismissed.4,5

4

Defendants also argue that plaintiff fails adequately to allege the
objective element of an Eighth Amendment claim, that the conditions of his
confinement “violate contemporary standards of decency.” Phelps, 308 F.3d at
185 (citations omitted). The court declines to dismiss plaintiff’s claim of
deprivation of his therapeutic diet on this ground. Some district courts in
this Circuit have held that depriving an inmate of one or two isolated meals
does not meet the objective element of an Eighth Amendment claim. See Inesti
v. Hogan, No. 11–CV–2596, 2013 WL 791540, at *24 (S.D.N.Y. Mar. 5, 2013),
adopted by 2013 WL 5677046 (S.D.N.Y. Sept. 30, 2013) (holding that one meal
missed was insufficient to establish a constitutional violation); Cagle v.
Perry, No. 04–CV–1151, 2007 WL 3124806, at *14 (N.D.N.Y. Oct. 24, 2007)
(holding that two meal deprivations were not sufficiently numerous,
prolonged, or severe to rise to level of Eighth Amendment violation);
Zimmerman v. Seyfert, No. 03–CV–1389, 2007 WL 2080517, at *27 (N.D.N.Y. July
19, 2007) (holding that requiring the plaintiff to go eleven hours without
eating did not rise to the level of a constitutional claim). The court makes
no finding as to whether isolated deprivations of a therapeutic meal on four
occasions meets the objective element of an Eighth Amendment claim, because
the court dismisses plaintiff’s claim for deprivation of his therapeutic diet
for his failure to allege adequately the subjective element. Cf. Phelps, 308

10

B. Medical Care
In cases alleging inadequate medical care, the
objective component requires that plaintiff allege a
sufficiently serious medical condition.

A condition is

sufficiently serious if it may cause “death, degeneration, or
extreme pain,” Johnson v. Wright, 412 F.3d 398, 403 (2d Cir.
2005) (quoting Hemmings v. Gorsczyk, 134 F.3d 104, 108 (2d Cir.
1998)), or if “the failure to treat [the] condition could result
in further significant injury or the unnecessary and wanton
infliction of pain.”

Harrison v. Barkley, 219 F.3d 132, 136 (2d

Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d
Cir. 1998)).

“Factors relevant to the seriousness of a medical

condition include whether ‘a reasonable doctor or patient would
find [it] important and worthy of comment,’ whether the
condition ‘significantly affects an individual's daily
activities,’ and whether it causes ‘chronic and substantial
pain.’” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006)
(quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).

F.3d at 186 (“[T]he alleged treatment-that prison officials deprived Phelps
of a nutritionally adequate diet for fourteen straight days-is not as a
matter of law insufficiently serious to meet the objective requirement.”)
5
In his opposition, plaintiff contends that defendants’ failure to provide
him with therapeutic meals upon traveling outside of the facility constitutes
a violation of the Equal Protection clause of the Fourteenth Amendment,
because inmates with therapeutic diets are treated differently as s class.
(Pl.’s Opp. at 12.) Plaintiff’s claim, improperly asserted for the first
time in his opposition, fails, because plaintiff’s need for a therapeutic
diet does not place him in any protected class. Cf. Frasco v. Mastic Beach
Property Owners’ Ass’n, No. 12-cv-2756, 2014 WL 3735870, at *5 (E.D.N.Y. July
29, 2014).

11

Identical to the standard for conditions of
confinement, a plaintiff alleging a claim of constitutionally
inadequate medical care must allege “the charged official
act[ed] or fail[ed] to act while actually aware of a substantial
risk that serious inmate harm will result.”

Salahuddin, 467

F.3d at 280 (citation omitted).
The court finds that the Amended Complaint does not
state plausible facts that plaintiff’s medical condition was
sufficiently serious to cause “death, degeneration, or extreme
pain,” or that “failure to treat [the] condition could result in
further significant injury or the unnecessary and wanton
infliction of pain.”

In his Amended Complaint, plaintiff does

not identify the medical condition(s)6 for which he was being
treated on the morning of December 8, 2013, nor does he state
the medication7 that he was prescribed to take the morning of
December 8, 2013.

Plaintiff does not allege any facts as to

whether his individual daily activities were affected by his

6

In his opposition, plaintiff states that he has been diagnosed with asthma,
degenerative disk disease, diabetes, hypothyroidism, sciatica, and immune
thrombocytopenic purpura. (Pl.’s Opp. at 14.) Although the court is
sympathetic to plaintiff’s ailments, plaintiff’s list of diagnoses alone,
without identifying any symptoms that he was suffering prior to, during, and
after his delay in treatment on December 8, 2013, is insufficient to allege
that failure to treat any one or combination of his medical conditions could
result in further significant injury or the unnecessary and wanton infliction
of plain.
7
Plaintiff describes the medication as “narcotic[s] medication” in his
Amended Complaint. (Am. Compl. at 8.) Plaintiff lists his medications in his
opposition, but does not provide any information about the frequency with
which he takes the indicated medications. (Pl.’s Opp. at 14.)

12

medical condition and whether his medical condition causes any
chronic and substantial pain.
The Amended Complaint also fails to allege that
defendants knew or should have known that a substantial risk of
harm to plaintiff would have resulted if he did not receive his
morning medication until later in the day or if he missed one
dosage.8

In his opposition, plaintiff contends that Correctional

Officer Boyd was aware of the risk of harm, because she once
took plaintiff to the clinic during an emergency when he was in
great pain.

(Pl.’s Opp. at 14.)

Plaintiff does not provide any

detail as to the cause of this prior emergency and that the pain
resulting from his prior emergency is in any way related to the
medication that he was prescribed to take on the morning of
December 8, 2013.

Without sufficient facts, the court cannot

infer that Correctional Officer Boyd’s involvement in
plaintiff’s prior medical emergency made her aware that a
substantial risk of serious harm to plaintiff would result if he
missed one dosage of his medication.

Consequently, plaintiff’s

claim of inadequate medical care and conspiracy9 to deprive him
of adequate medical care are dismissed.

8

It is not clear from plaintiff’s allegations whether he received his
medication on the afternoon of December 8, 2013, or whether plaintiff never
received his morning dosage of medication. This ambiguity does not change
the court’s analysis.
9
Absent an underlying constitutional violation on which to base a claim in
violation of 42 U.S.C. § 1983, a plaintiff’s conspiracy claim fails as a
matter of law. See Singer v. Fulton Cty. Sheriff, 63 F.3d 110 (2d Cir.
1995).

13

II.

Inmate Grievance Procedure
Although the Constitution guarantees meaningful access

to the courts and a right to petition the government for
redress, see e.g., Bill Johnson's Rest., Inc. v. NLRB, 461 U.S.
731, 741 (1983) (finding that “the right of access to the courts
is an aspect of the First Amendment right to petition the
Government for redress of grievances”), inmate grievance
procedures are not required by the Constitution and therefore a
violation of such procedures does not give rise to a claim of
violation of due process under § 1983.

See, e.g., Cancel v.

Goord, No. 00 CIV 2042, 2001 WL 303713, at *3 (S.D.N.Y. Mar. 29,
2001).

When an inmate sets forth a constitutional claim in a

grievance to prison officials and the grievance is ignored, the
inmate has the right to directly petition the government for
redress of that claim.
(8th Cir. 1991).

See Flick v. Alba, 932 F.2d 728, 729

Therefore, the alleged refusal to process an

inmate's grievance or failure to ensure that grievances are
properly processed does not state a claim of violation of due
process under 42 U.S.C. § 1983.

Ross v. Westchester County

Jail, No. 10 Civ. 3937, 2012 WL 86467, *8 n.9 (S.D.N.Y. Jan. 11,
2012).

Consequently, plaintiff’s claim that the inmate

14

grievance system deprived his constitutional right to due
process is hereby dismissed.10
III. Municipal Liability
To state a claim for relief against a municipal
defendant pursuant to 42 U.S.C. § 1983, a plaintiff must allege
the existence of an officially adopted policy or custom that
caused injury and a direct causal connection between that policy
or custom and the deprivation of a constitutional right.

Bd. of

Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403404 (1997) (citing Monell v. New York City Dep't of Social
Servs., 436 U.S. 658 (1978)).

Additionally, where a court finds

no underlying constitutional violation, it need not address the
municipal defendants’ liability under Monell.

Segal v. City of

New York, 459 F.3d 207, 219 (2d Cir. 2006).
Here, plaintiff has failed to allege any underlying
constitutional deprivation.

As such, his claims of municipal

liability are also dismissed.
IV.

Local Civil Rule 7.2
Plaintiff asserts that defendants violated Local Civil

Rule 7.2 by failing to provide printed copies of any “reported

10

To the extent plaintiff attempts to allege a new claim of retaliation for
First Amendment activity in connection with an alleged unconstitutional
search for the first time in his opposition, the claim is dismissed. This
incident is the subject of plaintiff’s suit in the Southern District of New
York, docket number 14-cv-3779, and plaintiff has stated in his Amended
Complaint that the issues related to the retaliation “will be followed up
within the Southern District of New York.” (Am. Compl. at 9.)

15

or unreported” decisions.

(Pl.’s Opp. at 25.)

Plaintiff

misconstrues Local Rule 7.2, however, which merely requires that
counsel shall provide pro se litigants “with copies of such
unpublished cases and other authorities cited therein that are
unpublished or reported exclusively on computerized databases.”
Defendants represent that they provided plaintiff all such
cases, and plaintiff notes that he received nineteen attached
cases, which is consistent with the number of authorities in
defendants’ memorandum that are unpublished or reported
exclusively on computerized databases.
no violation of Local Civil Rule 7.2.

16

As such, the court finds

CONCLUSION
For the foregoing reasons, the court grants
defendants’ motion in its entirety.

Plaintiff’s Amended

Complaint is dismissed without prejudice to amend.

Plaintiff

must file his second amended complaint within 45 days of this
Memorandum and Order.

The court notes that the second amended

complaint completely replaces plaintiff’s previous complaints.
See Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir.
1977).

Plaintiff should designate his newly amended complaint

as a “Second Amended Complaint.”

Failure to file a second

amended complaint in 45 days will result in dismissal with
prejudice. Defendants are respectfully directed to serve a copy
of this Memorandum and Order on plaintiff.

SO ORDERED.
Dated:

February 10, 2016
Brooklyn, New York

___________/s/______________
Kiyo A. Matsumoto
United States District Judge

17