Jandres v. Nassau County Medical Center et al

Filing 37

MEMORANDUM & ORDER granting in part and denying in part 26 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, the Armor Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. It is DENIED as to the Armo r Defendants' argument regarding lack of exhaustion, but otherwise GRANTED, and Plaintiff's claims against the Armor Defendants are DISMISSED WITH PREJUDICE. Plaintiff's claim for injunctive relief is also DISMISSED WITH PREJUDICE. Ad ditionally, the Clerk of the Court is directed to amend the docket to reflect Nurse Greg as a defendant in this action. However, Plaintiff's claims against Nurse Greg and Ms. Peg are sua sponte DISMISSED WITH PREJUDICE. The Court notes that Plai ntiff's only remaining claim is that against Officer Evans, who has not moved to dismiss. Accordingly, Plaintiff's claim will move forward as against Officer Evans. The Court certifies that pursuant to 28 U.S.C. § 1915(a)(3) that a ny appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to pro se Plaintiff. So Ordered by Judge Joanna Seybert on 3/31/2014. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
WILLIAM JANDRES,
Plaintiff,
-against-

MEMORANDUM & ORDER
12-CV-3132(JS)(GRB)

ARMOR HEALTH CARE INC.; DR. K;
P.H. SMITH; OFFICER EVANS, Badge
# 210; MR. CARLOS, Orthopedic
Specialist; and MS. PEG, Nurse,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
William Jandres, pro se
# 79047053
Federal Correctional Institute
P.O. Box 420
Fairton, New Jersey 08320
For Armor Defendants:

John J. Doody, Esq.
Suzanne E. Aribakan, Esq.
Lewis Brisbois Bisgaard & Smith, LLP
77 Water Street, Suite 2100
New York, New York 1005

For Officer Evans:

Ralph J. Reissman, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, NY 11501

SEYBERT, District Judge:
Currently before the Court is a motion to dismiss this
consolidated action filed by defendants Theodora Kay-Njemanze,
M.D. s/h/a Dr. K (“Dr. K”); Physician Assistant Rochelle TeagueSmith s/h/a P.H. Smith (“P.A. Smith”); Carlos Montero, Orthopedic
Specialist s/h/a Mr. Carlos (“Dr. Montero,” and together with Dr.
K and P.A. Smith, the “Individual Armor Defendants”); and Armor

Correctional Health Services of New York, Inc. (“Armor,” and
together

with

Defendants”).

the

Individual

Armor

Defendants,

the

“Armor

For the following reasons, the Armor Defendants’

motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND1
I.

Procedural Background
Pro se plaintiff William Jandres (“Plaintiff”) initially

commenced the instant action on June 21, 2012 under Docket Number
12-CV-3132.

The Court subsequently granted Plaintiff in forma

pauperis status pursuant to his motion, but sua sponte dismissed
his complaint with leave to re-plead.

(See Docket Entry 6.)

On

September 4, 2012, Plaintiff filed the Amended Complaint.
Thereafter, Plaintiff filed a separate action before
this Court under Docket Number 12-CV-4984.

On November 21, 2012,

the Court consolidated Plaintiff’s two actions, finding that the
cases involved common questions of law and fact. (See Docket Entry
11.)

The following facts are taken from the Amended Complaint filed
in Case No. 12-CV-3132 (“Am. Compl.,” Docket Entry 8) and the
Complaint filed in Case No. 12-CV-4984 (“Compl.”) and the
documents attached thereto and incorporated therein and will be
presumed to be true for the purposes of this Memorandum and
Order.
1

2

II.

Factual Background
Plaintiff seeks to recover against the Armor Defendants

and additional defendants “Ms. Peg,” “Nurse Greg,”2 and Officer
Evans (collectively “Defendants”)3 for an alleged violation of his
Eighth

Amendment

rights,

asserting

that

Defendants

were

deliberately indifferent to his medical needs while housed at the
Nassau County Correctional Center (“NCCC”).
Plaintiff alleges that on March 28, 2011, when he arrived
at NCCC, he was experiencing neck, back, and left shoulder pain.
(Am. Compl. at 6.)

Plaintiff thus “put in a few sick call sheets

to the Nassau County Medical Center . . . requesting an evaluation
of [his] injuries.”
denied,

however,

(Am. Compl. at 6.)
purportedly

because

His sick call sheets were
Nassau

Center’s contract with NCCC was about to expire.

County

Medical

(Am. Compl. at

6.)
Thereafter, on August 10, 2011, Plaintiff slipped and
fell on a wet floor while walking accompanied by Officer Evans.
(Am. Compl. at 7.)

Officer Evans filled out an injury report and

sent Plaintiff to the “new care provider,” Armor.
7-8.)

(Am. Compl. at

Officer Evans, however, did not report the incident to his

After consolidation, it appears that Nurse Greg was
inadvertently excluded from the docket sheet. The Clerk of the
Court is directed to amend the docket to reflect Nurse Greg as a
defendant in this action.
2

3

Additional defendants have been dismissed in prior orders.
3

supervisors or send Plaintiff to an outside hospital.
at 7.)

(Am. Compl.

Later that day, Plaintiff provided the injury report to

the “doctors and nurses” and advised them that his back, neck,
left shoulder, and right knee were all causing him “severe pain.”
(Am. Compl. at 9.)

The doctors and nurses “dismissed it lightly,

saying it was normal to be sore after a fall.”
Plaintiff

requested

an

MRI,

but

insurance would not pay for it.

was

told

(Am. Compl. at 9.)
that

Armor

or

its

(Am. Compl. at 9-10.)

On two subsequent occasions, a nurse told Plaintiff that
he would be seen by a doctor.

(Am. Compl. at 10.)

However,

Plaintiff did not see a doctor until November 22, 2011.
Compl. at 10.)

(Am.

At that time, the doctor diagnosed Plaintiff with

arthritis, but denied Plaintiff’s requests for X-rays or MRIs
because, she said, Armor’s insurance would not cover it.
Compl. at 10-11.)

(Am.

The doctor informed Plaintiff that she would

arrange for Plaintiff to see an orthopedic specialist. (Am. Compl.
at 11.)
On December 1, 2011, Plaintiff began physical therapy
and,

“a

couple

of

months

later”

orthopedic specialist, Dr. Montero.

Plaintiff

was

examined

(Am. Compl. at 11.)

by
Dr.

Montero sent Plaintiff for an MRI of his back and left shoulder,
but not for an MRI of Plaintiff’s knee as Plaintiff had also
requested.

(Am. Compl. at 12.)

The MRI revealed a bulging disc

of Plaintiff’s left shoulder and “an impingement & downslope of
4

the acromian [sic].”

(Am. Compl. at 12.)

Plaintiff’s physical

therapy continued for a few additional weeks.

(Am. Compl. at 13.)

Moreover, Plaintiff’s knee “kept popping out,” but Plaintiff’s
requests for an MRI of the knee were denied.

(Am. Compl. at 12.)

According to Plaintiff, Dr. Montero informed him that Armor would
not allow for an MRI of the knee because it “cost[s] too much
money.”

(Am. Compl. at 12.)
On June 18, 2012, Plaintiff met with P.A. Smith to

discuss

“all

of

(Compl. at 6.)

the

sick

sheets”

that

Plaintiff

filled

out.

Plaintiff told P.A. Smith that he was in pain,

that the left side of his body was numb, that he was having severe
headaches, and that his “right knee kept popping out of place
simply by walking.”

(Compl. at 6.)

P.A. Smith acknowledged that

Plaintiff had a bulging disc, impingement, and downslope of the
left shoulder, but advised him that there was nothing she could do
except provide Plaintiff with Naproxin because “Armored Company
Insurance would not cover any of [Plaintiff’s] treatment.” (Compl.
at 6.)
The next day, Plaintiff was taken to the health clinic
by wheel chair after reporting severe headaches and dizziness.
(Compl. at 7.)

At the health clinic, Plaintiff met with two “Jane

Does” who work for “Armor Correctional Inc. and the County of
Nassau.”

(Compl. at 7.)

“[T]he two ladies did not help” Plaintiff

and simply gave him 500 mg of Tylenol.
5

(Compl. at 7.)

Plaintiff continued to experience pain and returned to
the health clinic again on June 20, 2012.

(Compl. at 9.)

At that

time, Plaintiff spoke with P.A. Smith and “Nurse Greg” and reported
pain from his neck to his head and numbness to his face, tongue,
left arm, and left leg and foot.

(Compl. at 9.)

Plaintiff

requested that he be taken to the hospital but P.A. Smith said
that “insurance would not pay for it” and instead instructed Nurse
Greg to give Plaintiff Flexerol and another unspecified medication.
(Compl. at 9.)
The next day, Plaintiff complained of pain, numbness,
dizziness, and paralysis to his left eye and was taken to “Nassau
County Hospital.”

(Compl. at 11.)

An unidentified doctor at the

hospital diagnosed Plaintiff with Bells Palsy and advised that if
he had received medical treatment sooner, the medication would
have been more effective.

(Compl. at 11.)

Although the doctor

prescribed eye drops and ointment for Plaintiff’s eye, Plaintiff
did not receive the drops or ointment until June 29, 2012.
at 12.)

(Compl.

In fact, Plaintiff met with Dr. K on June 26, 2012 and

asked about the drops and ointment, though he still did not receive
them until days later.

(Compl. at 13.)

When Plaintiff ran out of

ointment, it was not refilled by Armor’s workers.

(Compl. at 14.)

Finally, on August 22, 2012, Plaintiff met with Dr.
Montero and Nurse Peg.
lower

back,

neck,

left

(Compl. at 5.)
shoulder,
6

and

He reported pain in his
right

knee

as

well

as

paralysis on the left side of his face and body.

(Compl. at 5.)

Dr. Montero advised Plaintiff that he needed a knee replacement
but there was “no treatment” for his injuries.

(Compl. at 5; Am.

Compl. at 5.)
DISCUSSION
The Armor Defendants now move to dismiss Plaintiff’s
consolidated action, arguing, inter alia: (1) that Plaintiff failed
to exhaust his administrative remedies; (2) that Plaintiff has
failed

to

state

a

claim

against

the

Armor

Defendants;

and

(3) that Plaintiff’s claim for injunctive relief should be denied
as moot.

The Court will first address the applicable legal

standard before turning to the merits of the Armor Defendants’
motion.
I.

Legal Standard
In deciding Rule 12(b)(6) motions to dismiss, the Court

applies a “plausibility standard,” which is guided by “[t]wo
working principles.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129

S.Ct. 1937, 173 L.Ed.2d 868 (2009); accord Harris v. Mills, 572
F.3d 66, 71–72 (2d Cir. 2009).

First, although the Court must

accept all allegations as true, this “tenet” is “inapplicable to
legal conclusions;” thus, “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678; accord Harris, 572 F.3d at
72.

Second, only complaints that state a “plausible claim for
7

relief” can survive a Rule 12(b)(6) motion to dismiss.

Iqbal, 556

U.S. at 679. Determining whether a complaint does so is “a contextspecific task that requires the reviewing court to draw on its
judicial experience and common sense.”

Id.; accord Harris, 572

F.3d at 72.
Because Plaintiff is litigating pro se, the Court reads
his Complaint liberally, see, e.g., Mancuso v. Hynes, 379 F. App’x
60, 61 (2d Cir. 2010), and interprets his papers to “‘raise the
strongest arguments that they suggest.’”

Corcoran v. N.Y. Power

Auth., 202 F.3d 530, 536 (2d Cir. 1999) (quoting McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999)).
II.

Failure to Exhaust Administrative Remedies
The Armor Defendants first assert that Plaintiff has

failed to exhaust his administrative remedies as required by the
Prison Litigation Reform Act (“PLRA”).

The Court disagrees.

The PLRA states in relevant part: “No action shall be
brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in
any

jail,

prison,

or

other

correctional

facility

until

such

administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a).

This exhaustion requirement “applies to all inmate

suits about prison life, whether they involve general circumstances
or particular episodes, and whether they allege excessive force or
some other wrong.”

Porter v. Nussle, 534 U.S. 516, 532, 122 S.
8

Ct. 983, 152 L. Ed. 2d 12 (2002).

However, failure to exhaust is

an

Supreme

affirmative

“inmates

are

defense,

not

and

required

the
to

specially

exhaustion in their complaints.”

Court

has

plead

or

held

that

demonstrate

Jones v. Bock, 549 U.S. 199,

216, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007).

“Dismissal under

Rule 12(b)(6) for failure to exhaust is thus appropriate only where
nonexhaustion is apparent from the face of the complaint.”

Roland

v. Smith, 907 F. Supp. 2d 385, 388 (S.D.N.Y. 2012) (citing McCoy
v. Goord, 255 F. Supp. 2d 233, 251 (S.D.N.Y. 2003)).
Here, Plaintiff alleges: “I did use the prison grievance
system by handing in many grievances but they also are incomplete
due to [their] lack of proper investigation and care.” (Am. Compl.
at 2.)

Plaintiff also attached various grievance forms to his

initial complaint in this action.

The Armor Defendants assert

that the grievances Plaintiff has provided demonstrate that he
complied with only the first step of a three-tiered grievance
procedure.

(Armor’s Br., Docket Entry 27, at 12-13.)

Moreover,

the Armor Defendants argue that the most recent grievance provided,
dated June 8, 2012, also includes a request from June 11, 2012
that Plaintiff provide additional information.
Br., Docket Entry 32, at 3.)

(Armor’s Reply

There is nothing else to show whether

Plaintiff indeed provided additional information, and this action
was commenced shortly thereafter.

9

However, the fact that Plaintiff has provided only the
first step of his grievance process does not necessarily mean that
he did not comply with the additional steps. As previously stated,
Plaintiff is not required to affirmatively plead exhaustion, and
the Court will dismiss on this basis only if the lack of exhaustion
is apparent from the face of the complaint.
though,

that

Plaintiff’s

allegation

The Court does note,

regarding

a

lack

of

investigation may be an admission that he failed to fully exhaust
his remedies.

At this stage, it is wholly unclear what Plaintiff

intends to assert, and therefore non-exhaustion is not apparent.
Moreover, Plaintiff’s allegation regarding the lack of
investigation can be read to assert a potential excuse. Exhaustion
may be excused if: (1) administrative remedies were unavailable;
(2) the defendants forfeited the defense or acted in such a way as
to estop them from raising it; or (3) “special circumstances”
justify non-exhaustion.

Hemphill v. New York, 380 F.3d 680, 686

(2d Cir. 2004) (internal quotation marks and citations omitted);
see also Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011).

Insofar

as Plaintiff intends to assert that administrative remedies were
unavailable

to

him

because

Defendants

refused

to

conduct

an

investigation or allow the grievances to go beyond the first step,
this is a potential excuse.

Cf. Williams v. Suffolk Cnty., No.

11-CV-5198, 2012 WL 6727160, at *5-6 (E.D.N.Y. Dec. 28, 2012).

10

Finally,

Plaintiff

has

also

filed

a

sur-reply,

attempting to supply the Court with additional proof that he
exhausted his administrative remedies or appropriately attempted
to do so.

(See Docket Entries 33-34.)

generally require permission of the Court.

Sur-replies, however,
See, e.g., Kapiti v.

Kelly, No. 07-CV-3782, 2008 WL 754686, at *1 n.1 (S.D.N.Y. Mar.
12, 2008) (“Allowing parties to submit surreplies is not a regular
practice that courts follow, because such a procedure has the
potential for placing a court ‘in the position of refereeing an
endless volley of briefs.’” (quoting Byrom v. Delta Family CareDisability & Survivorship Plan, 343 F. Supp. 2d 1163, 1188 (N.D.
Ga. 2004)).

Plaintiff neither requested nor received approval to

file his sur-reply.

Nonetheless, Plaintiff is pro se and his

submission supports the argument that Plaintiff has fully exhausted
his grievances--or at least that Plaintiff has potentially done
more than the attachments to his pleadings suggest.

See Spencer

v. Bellevue Hosp., No. 11-CV-7149, 2012 WL 1267886, at *3 n.2
(S.D.N.Y. Apr. 12, 2012) (“Nevertheless, because [the plaintiff]
is pro se, and because consideration of her sur-reply does not
alter the Court’s analysis, I will treat it as part of [the
plaintiff’s] opposition to Defendant’s motion.”).
Accordingly, the Armor Defendants’ motion to dismiss due
to lack of exhaustion is DENIED.

11

III. Failure to State a Section 1983 Claim
The

Armor

Defendants

further

argue

that,

even

if

Plaintiff has exhausted his administrative remedies, Plaintiff has
otherwise failed to state a claim for deliberate indifference to
Plaintiff’s medical needs pursuant to 42 U.S.C. § 1983 (“Section
1983”).

The Court will separately address whether Plaintiff

sufficiently

stated

a

claim

against

the

Individual

Armor

Defendants and against Armor.
A.

The Individual Armor Defendants

To state a claim under Section 1983, a plaintiff must
“‘allege that (1) the challenged conduct was attributable at least
in part to a person who was acting under color of state law and
(2) the conduct deprived the plaintiff of a right guaranteed under
the Constitution of the United States.’”

Rae v. Cnty. of Suffolk,

693 F. Supp. 2d 217, 223 (E.D.N.Y. 2010) (quoting Snider v. Dylag,
188 F.3d 51, 53 (2d Cir. 1999)).

In addition, a Section 1983 claim

must allege the personal involvement of any individual defendant
in the purported constitutional deprivation.

Farid v. Ellen, 593

F.3d 233, 249 (2d Cir. 2010) (quoting Farrell v. Burke, 449 F.3d
470, 484 (2d Cir. 2006)); see also Pettus v. Morgenthau, 554 F.3d
293, 300 (2d Cir. 2009).
To establish an Eighth Amendment violation arising out
of

deliberate

indifference

to

an

inmate’s

medical

needs,

a

plaintiff must allege: (1) a deprivation that is, in objective
12

terms, “sufficiently serious,” and (2) that the defendants “kn[ew]
of and disregard[ed] an excessive risk to inmate health or safety.”
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal
quotation marks and citations omitted).

The Armor Defendants

assert that Plaintiff has not sufficiently alleged his claim based
upon these elements.

The Court agrees, particularly because

Plaintiff has not alleged that the Individual Armor Defendants
knew of and disregarded an excessive risk.
First, as to Dr. Montero, Plaintiff essentially alleges
that Dr. Montero refused to send Plaintiff for an MRI or surgery.
However, these claims relate to a disagreement in treatment, which
does not raise a constitutional violation.

See Flemming v. City

of N.Y., No. 03-CV-0662, 2009 WL 3174060, at *3 (E.D.N.Y. Sept.
30, 2009) (“Whether an MRI should have been done is a classic
example of a matter for medical judgment as to the appropriate
course

of

treatment

and

is

not

actionable

under

the

Eighth

Amendment.” (internal quotation marks and citation omitted)); see
also Wright v. Genovese, 694 F. Supp. 2d 137, 155 (N.D.N.Y. 2010).
Second, Plaintiff essentially alleges that P.A. Smith
provided

Plaintiff

with

particular

medications

but

not

hospitalization or additional treatment and that Dr. K delayed
giving Plaintiff medication for two days and she refused stronger
medication. Such claims are indicative of the larger picture here.
Plaintiff’s pleadings clearly indicate that he regularly received
13

treatment,
treatment.

though

he

may

have

disagreed

with

the

course

of

The Individual Armor Defendants provided Plaintiff

with, inter alia, various medications, physical therapy, and MRIs
of his back and shoulder.

Such allegations demonstrate that the

Individual Armor Defendants were not deliberately indifferent to
Plaintiff’s medical needs.

See Cephas v. Nassau Cnty. Corr. Ctr.,

No. 12-CV-1445, 2014 WL 537576, at *5-6 (E.D.N.Y. Feb. 10, 2014)
(dismissing the plaintiff’s deliberate indifference claim against
Armor because, even though the plaintiff may not have received the
medication he wanted, he did receive medication).
Third, Plaintiff does allege that he was diagnosed with
Bells Palsy on June 21, 2012.

However, Plaintiff presented with

symptoms only days earlier, and P.A. Smith prescribed Plaintiff
medication.

See Hughes v. Salerno, No. 11-CV-9094, 2012 WL

6097775, at *3 (S.D.N.Y. Dec. 5, 2012) (“Each time plaintiff
complained of symptoms, Dr. Salerno provided her with treatment
responsive to, and commensurate with, the nature and severity of
the symptoms.”).

When Plaintiff experienced paralysis, Armor

immediately sent him to an outside hospital.

While Plaintiff’s

allegations suggest that P.A. Smith was potentially negligent, he
does not adequately allege that she was deliberately indifferent
to

Plaintiff’s

serious

medical

Plaintiff’s constitutional rights.

needs

or

that

she

violated

See Hill v. Curcione, 657 F.3d

116, 123 (2d Cir. 2011) (“[T]he Supreme Court has held that ‘a
14

complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of
medical

mistreatment

under

the

Eighth

Amendment.’”

(quoting

Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292, 50 L. Ed.
2d 251 (1976)).
Accordingly, the Armor Defendants’ motion to dismiss
Plaintiff’s deliberate indifference claims against the Individual
Armor Defendants is GRANTED and such claims are DISMISSED.
B.

Armor
A private employer, such as Armor, may be held liable

under

Section

1983

for

the

acts

of

its

employees

where

the

unconstitutional act was authorized or undertaken pursuant to the
official policy of the private entity employer and the employer
was

jointly

engaged

with

chargeable to the state.

state

officials

or

its

conduct

is

Cofield v. Armor Correctional Health,

Inc., No. 12-CV-1394, 2012 WL 1222326, at *2, (citing Rojas v.
Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408 (2d Cir. 1990);
White v. Moylan, 554 F. Supp. 2d 263, 268 (D. Conn. 2008); Martin
v. Lociccero, 917 F. Supp. 178, 184 (W.D.N.Y. 1995)).
There is no respondeat superior liability for Section
1983 claims, however.

See Minneci v. Pollard, --- U.S. ----, 132

S. Ct. 617, 625, 181 L. Ed. 2d 606 (2012); Southerland v. City of
N.Y., 681 F.3d 122, 137 (2d Cir. 2012)).

Thus, without the claims

against the Individual Defendants, Plaintiff’s allegations suggest
15

little

else

upon

which

to

base

liability

against

Armor.

Specifically, much of Plaintiff’s remaining allegations pertain to
unidentified individuals.

(See Armor’s Br. at 22 (summarizing

various allegations against unspecified individuals).)
Plaintiff also raises allegations against “Ms. Peg” and
“Nurse

Greg.”

The

identify Ms. Peg.

Armor

Defendants,

however,

(Armor’s Br. at 1 n.5)

are

unable

to

Moreover, Plaintiff’s

claims against Ms. Peg and Nurse Greg essentially reiterate those
against the Individual Armor Defendants and, in fact, are even
weaker.

Specifically, Plaintiff’s only allegation against Ms. Peg

is that she was present during Plaintiff’s August 22, 2012 visit
with Dr. Montero.

(Am. Compl. at 5; Compl. at 5.)

Plaintiff’s

only allegation against Nurse Greg is that he was present during
Plaintiff’s June 20, 2012 meeting with P.A. Smith.

(Compl. at 9.)

For the reasons stated above, these allegations are insufficient.
Accordingly, Plaintiff’s claims against Ms. Peg and Nurse Greg are
sua sponte DISMISSED WITH PREJUDICE.
As Plaintiff has failed to allege a basis for liability
against Armor, the Armor Defendants’ motion to dismiss in this
regard

is

GRANTED,

and

Plaintiff’s

claim

against

Armor

is

DISMISSED.
IV.

Injunctive Relief
The Armor Defendants additionally move for dismissal of

Plaintiff’s claim for injunctive relief on the grounds of mootness
16

given that Plaintiff is no longer housed at the NCCC.
Br. at 24.)

(Armor’s

Plaintiff has stated his intention to withdraw his

claim, (Pl.’s Opp. Br., Docket Entry 31, at 5), and the Court
agrees that injunctive relief is now moot.

See Prins v. Coughlin,

76 F.3d 504, 506 (2d Cir. 1996) (“It is settled in this Circuit
that

a

transfer

injunctive

from

relief

a

prison

against

facility

the

moots

transferring

an

action

for

facility.”).

Accordingly, the Armor Defendants’ motion to dismiss Plaintiff’s
claim for injunctive relief is GRANTED, and this claim is DISMISSED
WITH PREJUDICE.
V.

Leave to Replead
Finally, the Armor Defendants assert that Plaintiff

should not be permitted to amend because amendment would be futile.
The Court agrees.
The Second Circuit has stated that “[w]hen a motion to
dismiss is granted, the usual practice is to grant leave to amend
the complaint.”

Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d

Cir. 1999); see also FED. R. CIV. P. 15(a)(2) (“The court should
freely give leave [to amend] when justice so requires.”).

Here,

however, the Court finds that any amendment would be futile.
Plaintiff has already once amended his Complaint in the instant
action and essentially filed a similar complaint in the member
case.

Throughout these various iterations, Plaintiff has not

alleged that the Armor Defendants acted with a culpable state of
17

mind or that they were deliberately indifferent to Plaintiff’s
medical needs.

See Nelson v. Nassau Cnty. Sheriff Dep’t, No. 13-

CV-0477, 2013 WL 2120813, at *7 (E.D.N.Y. May 15, 2013) (dismissing
the

plaintiff’s

deliberate

indifference

claim

with

prejudice

because the plaintiff did not allege a culpable state of mind
(citing Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011); Palacio
v. Ocasio, No. 02-CV-6726, 2006 WL 2372250, at *1 (S.D.N.Y.
Aug. 11, 2006)). Accordingly, Plaintiff’s claims against the Armor
Defendants are DISMISSED WITH PREJUDICE.
CONCLUSION
For the foregoing reasons, the Armor Defendants’ motion
to dismiss is GRANTED IN PART and DENIED IN PART.

It is DENIED as

to the Armor Defendants’ argument regarding lack of exhaustion,
but otherwise GRANTED, and Plaintiff’s claims against the Armor
Defendants are DISMISSED WITH PREJUDICE.

Plaintiff’s claim for

injunctive relief is also DISMISSED WITH PREJUDICE.
Additionally, the Clerk of the Court is directed to amend
the docket to reflect Nurse Greg as a defendant in this action.
However, Plaintiff’s claims against Nurse Greg and Ms. Peg are sua
sponte DISMISSED WITH PREJUDICE.
The Court notes that Plaintiff’s only remaining claim is
that

against

Accordingly,

Officer

Evans,

Plaintiff’s

who

claim

Officer Evans.
18

has

will

not

move

moved
forward

to
as

dismiss.
against

The

Court

certifies

that

pursuant

to

28

U.S.C.

§ 1915(a)(3) that any appeal from this Order would not be taken in
good faith and therefore in forma pauperis status is denied for
the purpose of any appeal.

See Coppedge v. United States, 369

U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of
this Memorandum and Order to pro se Plaintiff.
SO ORDERED.

Dated:

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.

March
31 , 2014
Central Islip, NY

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