Reid v. Nassau County Sheriff Dept. et al

Filing 306

OPINION and ORDER granting in part and denying in part 183 Motion to Dismiss for Failure to State a Claim; granting 187 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 217 Motion to Dismiss for Failure to State a Claim; For the reasons set forth above, (1) the Armor/Miller defendants motion seeking dismissal of Tedescos Section 1983 claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and the PLRA is granted to the extent that (a) with the exception of Tedescos claim that Dr. Kay-Njemanzi deprived him of a bland diet food tray, his Section 1983 claims against the Armor/Miller defendants are dismissed in their entirety with prejudice for failure to state a clai m for relief, and (b) with the exception of Tedescos claim regarding Dr. Kay-Njemanzis treatment of him on or about July 26, 2011, his Section 1983 claims against the Armor/Miller defendants are dismissed in their entirety with prejudice for his fa ilure to exhaust administrative remedies, and the Armor/Miller defendants motion is otherwise denied; (2) the Medical/Dental defendants motion seeking dismissal of Young Section 1983 claims against them pursuant to Rule 12(b)(6) and the PLRA is grant ed and Youngs Section 1983 claims against the Medical/Dental defendants are dismissed in their entirety with prejudice for failure to exhaust administrative remedies and to state a claim for relief; and (3) the branch of the Armor/Sanchez defendants motion seeking dismissal of Marones Section 1983 claims against them pursuant to Rule 12(b)(6) is granted and Marones Section 1983 claims against the Armor/Sanchez defendants are dismissed in their entirety with prejudice for failure to state a claim for relief, and the motion is otherwise denied. There being no just reason for delay, the Clerk of the Court shall enter judgment (1) in favor of the Armor/Miller defendants on Tedescos claims against them; (2) in favor of the Medical/Dental defenda nts on Youngs claims against them; and (3) in favor of the Armor/Sanchez defendants on Marones claims against them, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Pursuant to Rule 77(d)(1) of the Federal Rules of Civil Procedure, th e Clerk of the Court is directed to serve notice of entry of this order upon all current parties to the consolidated action in accordance with Rule 5(b) of the Federal Rules of Civil Procedure. The Court certifies 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). SO ORDERED by Judge Sandra J. Feuerstein on 9/16/15. c/m to pro se plaintiffs. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOVANY HENRIUS, et al.
Plaintiffs,
-against-

13-CV-1192 (SJF)(SIL)

COUNTY OF NASSAU, et al.

OPINION and ORDER

Defendants.
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FEUERSTEIN, District Judge:
Pending before the Court, inter alia, are: (1) the unopposed motion of defendants Armor
Correctional Health Services of New York, Inc. (“Armor”), i/s/h “Armour Correctional Health,
Inc.,” Dr. Theodora Kay-Njemanzi, Mrs. Miller, “John Doe” and “Jane Doe” (collectively, the
“Armor/Miller defendants”) seeking to dismiss all claims asserted against them by consolidated
plaintiff Anthony Tedesco (“Tedesco”) pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure (“Rule 12(b)(6)”) and the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e(a); (2) the unopposed motion of defendants Medical Staff and Dental Staff (collectively,
“the Medical/Dental defendants”) seeking to dismiss all claims asserted against them by
consolidated plaintiff Richard Fitzgerald Young (“Young”) pursuant to Rule 12(b)(6) and the
PLRA; and (3) the motion of defendants Armor, Dr. C. Sanchez, Michael Parrinello (N.P.) and
Laina Hunt (P.A.) (collectively, “the Armor/Sanchez defendants”) seeking to dismiss all claims
asserted against them by consolidated plaintiff Joseph Marone (“Marone”) pursuant to Rule
12(b)(6) and the PLRA. For the reasons set forth below, the motions of the Armor/Miller
defendants and the Armor/Sanchez defendants are granted in part and denied in part and the
motion of the Medical/Dental defendants is granted in its entirety.
1

I.

BACKGROUND
A.

Factual Background
1.

Tedesco’s Allegations

Tedesco alleges that he was confined at the Nassau County Correctional Center
(“NCCC”) as a pretrial detainee from on or about March 23, 2011 through April 6, 2012, and as a
convicted prisoner from on or about August 3, 2012 through December 5, 2012. (Complaint
filed by Anthony Tedesco, originally assigned docket number 14-cv-1054, [“Tedesco Compl.”]
at 1 and ¶ 4).
Tedesco alleges that:
“[i]nsofar as health/medical services are concerned, (N.C.C.C.) is deliberately
indifferent to the medical needs of inmates. These policies and procedures,
staffing and access to medical care, acute and routine, treatment of communicable
diseases, medication management, cronic [sic] medical care (records, renewals,
etc.) drug detoxification, safety and sanitation and quality assurance are deficient
within the meaning of Estelle v. Gambelle [sic], 429 U.S. 97 (1976).”
(Tedesco Compl., ¶ 11). However, those allegations are no more than conclusions and, thus, are
not entitled to the assumption of truth applicable to factual allegations on a Rule 12(b)(6) motion.
See Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); Ruston v.
Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010).
Tedesco further alleges that he has a spinal condition, which he identifies as multiple
compound fractures at T11, T12, L1 and L2 sustained in a motor vehicle accident in or around
1994, resulting in “D.D.D. compressions a degenerative spinal condition that [he] [will] have for
the rest of [his] life[,]” and requiring continuous care. (Tedesco Compl., ¶¶ 19-20). According
to Tedesco, “(N.C.C.C.) has been aware of [his] disability for a long, long time[]” and he has

2

“been complaining of [his] pain and the lack of medical treatment at (N.C.C.C.)[,] [but]
(N.C.C.C.) has [been] deliberate[ly] indifferen[t] to [his] medical needs.” (Id., ¶ 22). The latter
allegation is also conclusory and, thus, not entitled to the assumption of truth.
Specifically, Tedesco alleges, inter alia, that on June 20, 2011, (1) “no examination was
conducted regarding [his] emergency sick call request[,] [he] was denied a proper medical exam,
treatment, and medication for his [chronic spinal] condition * * *[,]” (Tedesco Compl., ¶ 23);
and (2) “the medical staff refused treatment and medication, there [was] no one to help [him] and
now because of the pain [he] is unable to sleep at night or day [and] he is left with a physical
injury that is giving him a mental emotional disorder[,]” (id., ¶ 25).
With respect to his claims against Nurse Miller, Tedesco alleges, inter alia, (1) that he
was examined by Nurse Miller in the NCCC’s medical unit on the morning of July 24, 2011,
“[s]hortly after” he complained that he “could not move [his] legs without excruciating pain, and
[his] legs would not support [his] body[,]” (Tedesco Compl., ¶ 27), as a result of injuries he
sustained from a slip and fall the night before; (2) that “for almost the entire time [he] was in the
medical unit,” (id., ¶ 31), Nurse Miller “tormented, ridiculed, belittled, and harassed [him][,] * *
* called [him] a liar[,] * * * [and] pressured [him] to try to walk to prove [he] was injured[,] * *
* caus[ing] [him] extensive pain which magnified [his] injury[,]” (id.; see also id., ¶ 28); (3) that
Nurse Miller also caused him pain while putting him on the examining table and when trying to
raise his legs to his chest, (id., ¶ 28); and (4) that after approximately one hour1, Nurse Miller

1

Tedesco alleges that Nurse Miller purportedly harassed him for approximately fifteen (15)
minutes, then put him in the hallway to wait; that he waited in the hallway for about ten (10)
minutes before Officer Kennedy approached him; that approximately twenty-five (25) minutes
later, Nurse Miller and another officer made him attempt to walk and put him on the examination
3

gave him a pill for the pain, but refused to admit him to the clinic until she was confronted by a
sergeant approximately ten (10) minutes later, (id., ¶¶ 28-29). Thus, Tedesco alleges that “Nurse
Miller should have rendered medical treatment promptly as person [sic] in [her] profession were
[sic] trained to do[,]” (id., ¶ 30), and that her conduct “show[s] consciencious [sic] punitory [sic]
negligence to [him].” (Id., ¶ 32).
With respect to his claims against Dr. Kay-Njemanzi, Tedesco alleges, inter alia, (1) that
on his third day in the clinic, i.e., on or about July 26, 2011, Dr. Kay-Njemanzi “wanted [him] to
take another x-ray[,]” but he refused after informing her that he “already had a x-ray of [his] back
in multiple positions, * * * was to be scheduled for a M.R.I.[,] [a]s requested by Dr. Dennis
Cosstello [sic][,] * * * [and] [did] not want to be exposed to any more radiation from
unnecessary x-ray’s [sic], * * *[,]” (Tedesco Compl., ¶ 34); (2) that Dr. Kay-Njemanzi then told
him that he was “not getting the M.R.I., and [she] [was] taking away [his] wheel chair [sic], and
sending [him] back to [his] dorm[,]” (id., ¶ 35); and (3) that he was refused an MRI and Nurse
Cris took his wheelchair away the next night, (id., ¶ 36).
In addition, Tedesco alleges that on August 29, 2011, Dr. Kay-Njemanzi intentionally
“stopped [him] from receiving [his] bland diet food tray,” which he requires “because of a
Gastrointestinal condition[,]” in retaliation for his filing of a grievance against her for her
conduct on or about July 26, 2011, (Tedesco Compl., ¶¶ 46-49), as a result of which he had “pain
in [his] stomach * * * [and] blood in [his] stool” for “months.” (Id., ¶ 51).
Tedesco seeks, inter alia, compensatory damages in the amount of one million dollars

table; and that Nurse Miller then left for approximately ten (10) minutes before finally giving
him a pill for the pain. (Tedesco Compl., ¶ 28).
4

($1,000,000.00); “cosmetic damages” in the amount of two hundred fifty-thousand dollars
($250,000.00); “indeterminate damages” in the amount of one million dollars ($1,000,000.00);
and punitive damages in the amount of ten million dollars ($10,000,000.00). (Tedesco Compl.,
at 31-32).

2.

Young’s Allegations

Young alleges, inter alia, that from June 30, 2012 until March 10, 2013, while he was
incarcerated at the NCCC, “[t]he medical staff inadequately responded to sick-calls[;] [t]he
[d]ental staff was poor as well[;] [and] [i]t would take a week or more to see the nurse, doctor or
dentist[] * * * [and] a number of sick-calls [sic] request [sic] to get any response.” (Complaint
filed by Richard Fitzgerald Young, originally assigned docket number 14-cv-1675 [“Young
Compl.”], ¶ IV). Specifically, Young alleges that after he stumbled in the shower and “infected
[his] marriage finger and [] right arm[,]” causing his finger to be swollen and painful, he
completed a sick-call request, but he did not see the nurse until a week later. (Id., ¶ IV.A).
According to Young, in the interim he “was suffering pain from [his] swollen finger[] [and] [t]he
rash was spreading all up [his] right side[,]” as a result of which he sustained “sleepless nights[]”
and stress that he would lose his finger. (Id.) Once Young was examined, the nurse, Ms.
Reveria, gave him Hydrocortisone cream for the rash and Ms. Hunt prescribed him an antibiotic
and Motrin for his finger. (Id.) Young alleges that when the antibiotic did not work, Ms. Hunt
“had to cut open [his] finger with a scaple [sic] and squeeze out the pus[] * * * [which] was very
painful,” (id.), then she “took a culture to find out the appropriate antibiotic for [his] infected
finger * * *.” (Id.)
5

Young further alleges that after his “left arm grew red bumps” from an unidentified insect
bite, the nurse, Ms. Davis, gave him Hydrocortisone cream. (Young Compl., ¶ IV.A).
Young seeks “[a] portion of the class-action relief.” (Young Compl., ¶ V).

3.

Marone’s Allegations

Marone alleges that was incarcerated at the NCCC from May 7, 2014 to May 24, 2014[,]
(Complaint filed by Joseph Marone, originally assigned docket number 14-cv-3786 [“Marone
Compl.”], ¶ IV[1]); and that on May 9, 2014, he submitted a sick call request “regarding the
servere [sic] pain [he] was having in [his] left leg due to a [sic] injury that occurred while being
incarcerated in [NCCC].” (Id., ¶ IV[2]). However, the Sick Call Request (“SCR”) submitted by
Marone in opposition to the Armor/Sanchez defendants’ motion indicates, in relevant part:
“NEED to see the doctor concerning my medication that I’m not receiving yet. I
take 200 mg [of] Neurontin twice a day. Also I am not getting my H.C.
[presumably, high calorie] meal which I lose weight rapidly because of my
medical condition.”
(Marone Opp., Ex. A). On the bottom of the SCR, Marone wrote: “May 12 [a]bout 7 pm saw Dr.
Sanchez. He refuse [sic] to order my medication and special meal. He told me to write a
grievance.” (Id.) In his complaint, Marone alleges that on May 12, 2013, he was examined by
Dr. C. Sanchez, who “refused to prescribe [him] [his] Neurontin medication for [his] neuropathy
condition[,]” (Marone Compl., ¶ IV[2]), which had been prescribed to him two (2) to three (3)
weeks earlier “in the other part of th[e] [NCCC].”2 (Id.)

2

Although Marone alleges that he was incarcerated at the NCCC from May 7, 2014, only five
(5) days prior to his examination by Dr. Sanchez, he apparently was incarcerated at the NCCC on
a previous occasion from on or about April 23, 2014 until May 1, 2014. (See “Release of
6

On May 13, 2014, Marone submitted another SCR indicating, in relevant part:
“I am having sharp pains and numbness in my left leg. I’m suppose [sic] to be on
Neurontin medication. I have been on it since 2011 and now I’m not receiving it.
Also I was getting a H.C. meal and now I am not getting it. My headaches and
stomach pains are coming back. Please fix these 2 problems.”
(Marone Opp., Ex. A). On the bottom of the SCR, Marone noted:
“May 14 about 3:30 pm wrote out grievance form explaining that I’m still not
receiving my medication nor special meal. 5/15 about 6:30 pm saw [Parrinello]
[who] won’t prescribe me my meds or meal [and] told me try naperson [sic] for a
week then put another sick call in and [illegible] meal if I weight [sic] under 100
lbs he’ll give it to me. I weighted [sic] 149 lbs. so he told me I weight [sic] to
[sic] much, I’m over 100 lbs.”
(Id.)3
In the grievance form dated May 14, 2014 (“the May Grievance”), Marone indicated, in
relevant part:
“I am not receiving my medication and H.C. meal. I’m suppose [sic] to be taking
200 mg twice a day of Neurontin for neuropathy in my leg. * * * I’ve been on this
medication since 2011 and I’ve been prescribed the medication and H.C. meal on
4/2014.”
(Marone Opp., Ex. A). Marone requested that he be prescribed Neurontin and the H.C. meal “as
written to me by medical in April of [2014].” (Id.)
An Inmate Grievance Receipt [“IGR”] dated May 15, 2014 acknowledges receipt of the
May Grievance. (Id.) On the IGR, Marone, wrote:

Information” forms dated June 4, 2014 and June 20, 2014, Marone Opp., Ex. A).
3

In his complaint, Marone alleges, inter alia, that on May 15, 2014, he saw Michael Parrinello,
a nurse practitioner, who refused to prescribe him medication “for the pain of [his] condition.”
(Marone Compl., ¶ IV[2]). As that allegation is contradicted by the documentary evidence
submitted by Marone in opposition to the Armor/Sanchez defendants’ motion, it is not entitled to
the assumption of truth.
7

“CO Rodriges [sic] came 5/20/14 regarding my grievance. Medical wrote that I
weight [sic] 179 lbs on 5/15/14 which [sic] when I was weighted [sic] I was at 149
lbs. [Parrinello] lied to Grievance Officer. I then denied [sic] to sign grievance
and have it appealed to Chief Administrative Officer. CO Barber was there when
the examination occured [sic] along with 2 other officers.
5/28/14 CO Rodrigus [sic] brought grievance and decision was denied saying they
have been giving me medicine for my condition and monitoring my weight.”
(Marone Opp., Ex. A).
On May 17, 2014, Marone submitted an SCR indicating:
“Still having a lot of pain in my left leg. Which is causing extreme numbness in
my foot and toes. I am having trouble sleeping at night because of the pain and
due to my stomach hurting/ I am extremely under weight and going to bed hungry
at night. Off and on headaches due to being hungry. I am respectfully requesting
my usual medication along with the H.C. meal that I’ve gotten before because of
my medical condition.”
(Marone Opp., Ex. A). On the bottom of the SCR, Marone, wrote, in relevant part, that on May
20, 2014, at approximately 2:30 p.m., his weight was 150-151 pounds and Laina Hunt, the
physician’s assistant,
“will not prescribe H.C. only for cancer and HIV patients. Said my sick call was
based on meal problem and rushed me out the door. Also that they do not
prescribe anything stronger then [sic] what I was put on now.”
(Id.)
Marone submits part of a record referencing the May Grievance that begins mid-sentence
under the word “CONTINUED[]” and indicates:
“symptoms although not with Neurontin[.] Choose instead to administer
Naprosyn. Furthermore [Marone’s] weight was recorded at 179 lbs. Therefore a
high calorie diet wasn’t prescribed. [Marone] may sign up for a sick call should
his condition worsens [sic].”
(Marone Opp., Ex. A).

8

The decision of the grievance coordinator (“GC”) on the May Grievance, dated May 19,
2014, is illegible, but on May 20, 2014, Marone indicated thereon that he read and appealed the
GC’s decision. (Marone Opp., Ex. A).
On May 20, 2014, Marone submitted another SCR indicating, in relevant part:
“Requesting to have my weight checked. Also my left leg is still numbing out and
a lot of pain is radiating though [sic] it. The meds that were prescribed are not
helping my condition. I wish to see a specialist and to speak to the medical
director.”
(Marone Opp., Ex. A). At the bottom of the SCR, Marone wrote:
“May 22, 2014 approx. 6:45 pm I was called for sick call and seen by [Parrinello]
which he tells me that medical is now waiting for blood results before prescribing
me the proper medication that I’ve been taking for 3 year [sic]. [L]ast time I saw
him 5/15 he told me that they don’t prescribe medication high [sic] then [sic]
Naperson [sic] which I knew was false because I’ve gotten the Neurontin
medication here before. * Also I’ve been put on a 6 week scale check to monitor
my weight. Medical is now responding better to my needs, but has taken them
almost a month to do so.”
(Id.)
On May 21, 2014, at approximately 9:00 a.m., Marone submitted another SCR indicating,
in relevant part:
“I am still having pain in my left leg due to not getting my neurontin medication.
When I was in the main part of the [NCCC] they had given me the medication
around April 24, 2014. Also around April 26, 2014 I was placed on a H.C. meal
due to my weight not being in the range that it is supposed to be. Once again I’m
respectfully asking to get what I was already getting about a month ago.”
(Marone Opp., Ex. A). At the bottom of the SCR, Marone noted that he was called to the
medical unit on May 24, 2014, at approximately 9:00 a.m., to have his weight checked; that his
weight was 155 lbs “due to eating commissary that I have receive on 5/[illegible];” and that he
was “getting extra food tray for helping out in [his] dorm. 5/20.” (Id.)
9

By decision dated May 23, 2014, the Chief Administrative Officer (“CAO”) denied the
May Grievance on the basis that Armor was “treating [Marone’s] condition with medicine and
will monitor [his] weight regarding [his] diet.” (Id.) On May 28, 2014, Marone appealed the
CAO’s decision to the Citizen’s Policy and Complaint Review Council (“CPCRC”) at the
Commission of Correction. (Id.) By decision dated July 15, 2014, the CPCRC denied the May
Grievance and “sustain[ed] the action taken by the facility administration.” (Id.)
Marone again submitted an SCR on May 25, 2014, at approximately 9:30 a.m.,
indicating:
“I am still experiencing pain in my left leg. Its [sic] constent [sic] and the pain
has been getting worst [sic]. Also I’ve notice [sic] a lump in my left foot by my
ankle. It hurts a little and it’s uncomfortable feeling.”
(Marone Opp., Ex. A). At the bottom of the SCR, Marone indicated that on June 1, 2014, he
weighed 159.5 pounds and that on May 30, 2014, at approximately 9:30 a.m.,
“[I] saw [] Parrinello which [sic] finally prescribed my neurontin meds but in a
small dose and once a day. Told me if I still have pain write another sick call in 2
weeks and he will up the doseage [sic]. I feel as if they are [deliberately] torturing
me and having me go through pain because I’m a [sic] Inmate Patient.”
(Id.)
On June 1, 2014, at approximately 3:00 p.m., Marone submitted another SCR indicating,
“I’m getting shooting pain in the late evening and throughout the night which is
keeping me up and disturbing my sleep. I’ve finally been put on neurontin in the
mourning [sic] which is helping.”
(Marone Opp., Ex. A). At the bottom of the SCR, Marone indicated that on June 3, 2014, at
approximately 7:00 p.m., he weighed 162 pounds. (Id.)
On June 3, 2014, at approximately 1:25 p.m., Marone submitted an SCR indicating, in
relevant part,
10

“When trying to get my Neurontin medication I was told that I’ve been
discontinued for some reason. I would like to see the medical director. The script
was written for 5/30/14 to 6/30/14[.]”
(Marone Opp., Ex. A). In his complaint, Marone alleges that on June 3, 2014, at approximately
7:00 p.m., he was told by a physician’s assistant named Francis that Ms. Hunt “had discontinued
[him] off the meds [sic] due to [him] not taking them on the outside.” (Id., ¶ IV[7]).
On June 3, 2014, Marone submitted a grievance (“the Special Meal Grievance”)
indicating, in relevant part:
“This grievance is regarding the previous grievance on 5/14/14 [the May
Grievance]. I was told that I was denied the H.C. meal because my weight was
179 lbs which is false. My actual weight is 159.5 lbs as of 6/1/14.”
(Marone Opp., Ex. A). In response to the inquiry regarding the documentation or information he
had in support of his grievance, Marone wrote, in relevant part: “letter from the Grievance
Coordinator saying medical had my weight a [sic] 179 lbs which I lost weight over this past
month and now weight [sic] 159.5 which is a 20 lb. difference. This is recorded in my file when
called for a weight check 6/4.” (Id.) Marone requested “to be placed on the special meal to
regain the weight that [he] ha[d] lost[].” (Id.)
On that same date, Marone submitted another grievance (“the Medication Grievance”)
indicating, in relevant part:
“On 5/30/14 9:30 am I saw Michael Parrinello which [sic] finally prescribed me
the neurontin medication. As of 6/3/14 approx. 1 pm the nurse told me my meds
have been discontinued. My pain is starting to come back and soon it will get
worse. I feel that P.A. Hunt is being discriminating [sic] toward me.”
(Marone Opp., Ex. A). With respect to the documentation or information he had in support of he
Medication Grievance, Marone wrote:

11

“I was getting the neurontin medication for 3 day [sic] 5/30 to 6/3 after being told
the highest medication they would give me is naperson [sic]. I have a prescription
on the outside filled at my local pharmacy. Also I’ve been on this medication
since 2011 and is in my previous record in medical.”
(Id.) Marone requested that he get his medication back “for it was helping [him] with [his] pain
and condition.” (Id.) An IGP dated June 5, 2015 acknowledges receipt of Marone’s grievance
regarding “Medical,” although it does not indicate to which grievance, i.e., the Special Meal
Grievance or the Medication Grievance, it pertains. (Id.)
Marone alleges that he was put back on Neurontin on June 4, 2014, only one (1) day after
it had been discontinued. (Marone Compl., ¶ IV[7]). On that same date, Marone submitted a
“Release of Information” form to Armor to obtain his medical records from April 2011 to
November 2012; April 23, 2014 to May 1, 2014; and May 7, 2014 “to present.” (Marone Opp.,
Ex. A).4
On June 6, 2014, CO Rodriguez of the Grievance Unit sent a memorandum to Marone
with respect to the Special Meal Grievance indicating, in relevant part, that Marone “still failed
to provide [him] with more information[]” regarding that grievance and requesting that Marone
re-submit his original grievance form along with “documentation to support [his] claims[,]”
information regarding whether he ever “submit[ted] a sick call slip for [his] diet issue[,]” and
“dates and proof[,]” so that the grievance unit could “provide [him] with a complete and
thorough investigation.” (Marone Opp., Ex. A).
Marone submitted an SCR on June 25, 2014 indicating that he “would like to talk to a

4

On June 20, 2014, Marone submitted a similar authorization to have his medical records
disclosed by Armor to his lawyer. (Marone Opp., Ex. A).
12

Mental Health Counselor. Having anxiety and bad dreams.” (Marone Opp., Ex. A). At the
bottom of the SCR, Marone indicated that he saw Aaron Cooper “of Mental Health” on June 26,
2014 and that on June 27, 2014, his chest felt tight and he was having a hard time breathing and
was sweaty and clammy. (Id.)
On July 1, 2014, Marone filed a grievance (“the July Grievance”) indicating, in relevant
part:
“7-1-14 at 8:45 am I talked to Grievance Officer Magalletti about [the Special
Meal Grievance]. He told me to contact C.O. Rodriguez about the grievance that
has not been responded to.”
(Marone Opp., Ex. A). Marone further indicated that he submitted sick call slips regarding the
Special Meal Grievance, but “[i]ts [sic] been almost a month and haven’t heard anything from
it.” (Id.) Marone requested that CO Rodriguez see him “and bring the Grievance with her.”
(Id.)
On July 3, 2014, at approximately 6:35 p.m., Marone submitted an SCR indicating that he
needed to refill his Neurontin medication. (Marone Opp., Ex. A).
On July 30, 2014, Marone again submitted an SCR indicating, in relevant part, that he
needed to refill his Neurontin medication. (Marone Opp., Ex. A).
Marone alleges that “[i]f [he] was receiving Neurontin medication along with physical
therapy [he] would not be experiencing [as] much pain[]” from his neuropathy. (Id., ¶ IV.A).
Marone seeks “to get adequate and timely medical treatment while being incarcerated[] * * *
[and] monetary compensation of [$]14,000,000 [fourteen million dollars] * * *.” (Marone
Compl., ¶ V).

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B.

Procedural History

On or about February 11, 2014, Tedesco commenced an action in this Court against
Anthony J. Annucci, and/or his predecessor, as the New York State Commissioner of
Corrections; Sheriff Michael Sposato (“Sheriff Sposato”), i/s/h “Sheriff, Mr. Spazato
(N.C.C.C.);” the Nassau University Medical Center and its employees Mrs. Davis, “John Doe”
and “Jane Doe;” the Armor/Miller defendants; Officer Saeed; Officer Hayman; and “John Doe”
and “Jane Doe” employees of the Nassau County Sheriff’s Department and the NCCC, which
was assigned docket number 14-cv-1054. By order dated April 22, 2014, Tedesco’s action was
consolidated with the case assigned docket number 13-cv-1192, which is now called Henrius v.
County of Nassau (“the Henrius case”)5, the lead case in a number of consolidated cases
challenging similar conditions of confinement purportedly existing at the NCCC that were
commenced on or after February 28, 2013.
On or about March 12, 2014, Young commenced an action in this Court against Vincent
Demarco, Michael Sharkey and the Medical/Dental defendants, which was assigned docket
number 14-cv-1675. By order dated April 24, 2014, Young’s action was consolidated with the
Henrius case.
On or about June 11, 2014, Marone commenced an action in this Court against the
County of Nassau, County Executive Edward Mangano; the NCCC; Sheriff Sposato; and the
Armor/Sanchez defendants, which was assigned docket number 14-cv-3786. By order dated

5

At the time Tedesco’s complaint was consolidated, the lead case was entitled Reid v. Nassau
County Sheriff’s Department, et al. The name was subsequently changed after Reid’s claims
were dismissed in their entirety with prejudice pursuant to an order dated August 20, 2014.
(Doc. No. 149 in lead case).
14

June 30, 2014, Marone’s action was consolidated with the Henrius case.
Pending before the Court, inter alia, are: (1) the unopposed motion of the Armor/Miller
defendants seeking to dismiss all claims asserted against them by Tedesco pursuant to Rule
12(b)(6) and the PLRA; (2) the unopposed motion of the Medical/Dental defendants seeking to
dismiss all claims asserted against them by Young pursuant to Rule 12(b)(6) and the PLRA; and
(3) the motion of the Armor/Sanchez defendants seeking to dismiss all claims asserted against
them by Marone pursuant to Rule 12(b)(6) and the PLRA, which Marone opposes.

II.

DISCUSSION
A.

Standard of Review

The standard of review on a motion made pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure is that a plaintiff plead sufficient facts “to state a claim for relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974, 167 L.
Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937. The plausibility standard requires “more than
a sheer possibility that a defendant has acted unlawfully.” Id.
“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements
of a cause of action will not do.’” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937 (quoting Twombly,
550 U.S. at 555, 127 S. Ct. 1955). “Nor does a complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557,
127 S. Ct. 1955). “Factual allegations must be enough to raise a right to relief above the
15

speculative level, on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Twombly, 550 U.S. 544, 127 S. Ct. at 1959.
In deciding a motion pursuant to Rule 12(b)(6), the Court must liberally construe the
claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences
in favor of the plaintiff. See Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d 166,
176 (2d Cir. 2013) (quotations and citation omitted); Grullon v. City of New Haven, 720 F.3d
133, 139 (2d Cir. 2013). However, this tenet “is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937. “While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Id. at 679, 129 S. Ct.
1937. “In keeping with these principles a court considering a motion to dismiss can choose to
begin by identifying pleadings that, because they are no more than conclusions, are not entitled to
the assumption of truth.” Id.; see also Ruston, 610 F.3d 55, 59 (2d Cir. 2010).
Nonetheless, a plaintiff is not required to plead “specific evidence or extra facts beyond
what is needed to make the claim plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120-1
(2d Cir. 2010); accord Pension Benefit Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret.
Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 729-30 (2d Cir. 2013). “When there are
well-pleaded factual allegations, a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679, 129 S. Ct. 1937.
In deciding a motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
the Court must limit itself to the facts alleged in the complaint, which are accepted as true; to any
documents attached to the complaint as exhibits or incorporated by reference therein; to matters
16

of which judicial notice may be taken; or to documents upon the terms and effect of which the
complaint “relies heavily” and which are, thus, rendered “integral” to the complaint. Chambers
v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); see also ASARCO LLC v. Goodwin,
756 F.3d 191, 198 (2d Cir. 2014), cert. denied, 135 S. Ct. 715, 190 L. Ed. 2d 441 (2014).
Moreover, although a pro se complaint “must be construed liberally to raise the strongest
arguments it suggests[,] * * * [it] must state a plausible claim for relief.” Nielsen v. Rabin, 746
F.3d 58, 93 (2d Cir. 2014) (quoting Walker v. Schult, 717 F.3d 119, 124 (2d Cir.2013) (internal
citations, quotation marks, and brackets omitted)).

B.

Exhaustion of Administrative Remedies

Section 1997e(a) of the PLRA provides that “[n]o 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). “[E]xhaustion is mandatory under the PLRA
and * * * unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211,
127 S. Ct. 910, 166 L. Ed. 2d 798 (2007); see also Woodford v. Ngo, 548 U.S. 81, 86, 126 S. Ct.
2378, 165 L. Ed. 2d 368 (2006). “[T]he PLRA’s exhaustion requirement applies to all inmate
suits about prison life, whether they involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532,
122 S. Ct. 983, 152 L. Ed. 2d 12 (2002); accord Johnson v. Killian, 680 F.3d 234, 238 (2d Cir.
2012). “The PLRA attempts to eliminate unwarranted federal-court interference with the
administration of prisons, and thus seeks to afford corrections officials time and opportunity to
17

address complaints internally before allowing the initiation of a federal case.” Woodford, 548
U.S. at 93, 126 S. Ct. 2378 (alterations, quotations and citation omitted); see also Amador v.
Andrews, 655 F.3d 89, 96 (2d Cir. 2011). “The PLRA also was intended to reduce the quantity
and improve the quality of prisoner suits.” Woodford, 548 U.S. at 93, 126 S. Ct. 2378; see also
Porter, 534 U.S. at 524-25.
“[T]he PLRA exhaustion requirement requires proper exhaustion,” Woodford, 548 U.S.
at 93, 126 S. Ct. 2378; see also Johnson, 680 F.3d at 238, “that is, using all steps that the agency
holds out, and doing so properly.” Amador, 655 F.3d at 96 (quotations and citation omitted); see
also Porter, 534 U.S. at 524; 122 S. Ct. 983 (“All ‘available’ remedies must * * * be
exhausted.”); Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007) (“[T]o satisfy the PLRA a prisoner
must * * * procedurally exhaust his available administrative remedies.” (emphasis omitted)).
“This entails both completing the administrative review process in accordance with the
applicable procedural rules * * * and providing the level of detail necessary in a grievance to
comply with the grievance procedures.” Amador, 655 F.3d at 96 (alterations, quotations and
citations omitted). “The exhaustion inquiry * * * requires that [the court] look at the state prison
procedures and the prisoner’s grievance to determine whether the prisoner has complied with
those procedures.” Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009); see also Abney v.
McGinnis, 380 F.3d 663, 668 (2d Cir. 2004) (“When determining whether an administrative
remedy is available, courts should be careful to look at the applicable set of grievance
procedures, whether city, state or federal.” (quotations and citation omitted)). Merely “alerting
the prison officials as to the nature of the wrong for which redress is sought * * * does not
constitute ‘proper exhaustion’ * * *.” Macias, 495 F.3d 44 (alterations, quotations and citations
18

omitted).
The rules and regulations of the New York State Commission of Correction, applicable to
the NCCC, see http://www.scoc.ny.gov/jailaddre.htm#Nassau, provides a three (3) step
process for the handling of inmate grievances. To initiate the process, “[a]n inmate must file a
grievance within five days of the date of the act or occurrence giving rise to the grievance[,]”
N.Y. Comp. Codes R. & Regs. tit. 9, § 7032.4(d) (2015), with the grievance coordinator
designated by the chief administrative officer. Id., § 7032.4(e); see Hill v. Curcione, 657 F.3d
116, 124 (2011) (holding that New York regulations setting forth the minimum standards and
regulations for the management of county jails and penitentiaries require complaints about prison
conditions to be submitted to the grievance coordinator “within five days of the occurrence
giving rise to the grievance.”) A “grievance” is defined as “a written inmate complaint
concerning either written or unwritten facility policies, procedures, rules, practices, programs or
the action or inaction of any person within the facility.” N.Y. Comp. Codes R. & Regs., tit. 9, §
7032.2(a). “[A] grievance that is too vague to understand or fails to set forth supporting evidence
or information may be returned to the inmate.” Id., § 7032.4(f). “Within two business days after
receipt of the grievance coordinator’s written determination, the grievant may appeal to the chief
administrative officer or his designee.” Id., § 7032.4(j). “Within three business days of the
receipt of the chief administrative officer’s determination, any grievant may appeal any grievance
denied by the facility administrator, in whole or in part, to the [Citizens’ Policy and Complaint
Review Council (“CPCRC”) of the New York] State Commission of Correction by indicating
his/her desire to appeal on the inmate grievance form in the space provided for such purpose.”
Id., § 7032.5; see Hill, 657 F.3d at 124-25 (“A further appeal may be taken through the Citizens’
19

Policy and Complaint Review Council of the New York State Commission of Corrections.”)
“[F]ailure to exhaust is an affirmative defense under the PLRA, and * * * inmates are not
required to specially plead or demonstrate exhaustion in their complaints.” Jones, 549 U.S. at
216, 127 S. Ct. 910; accord Grullon, 720 F.3d at 141. “Like other affirmative defenses, failure to
exhaust may be grounds for dismissal under Rule 12(b)(6) if the defense appears on the face of
the complaint.” Walker v. Vargas, No. 11 Civ. 9034(ER), 2013 WL 4792765, at * 4 (S.D.N.Y.
Aug. 26, 2013); see Sewell v. Bernardin, 795 F.3d 337, 339 (2d Cir. 2015) (“Dismissal under
Fed. R. Civ. P. 12(b)(6) is appropriate when a defendant raises a statutory bar, * * * as an
affirmative defense and it is clear from the face of the complaint, and matters of which the court
may take judicial notice, that the plaintiff’s claims are barred as a matter of law.” (quotations and
citation omitted); Kelly-Brown v. Winfrey, 717 F.3d 295, 308 (2d Cir. 2013) (“Affirmative
defenses may be adjudicated at th[e] [pleadings] stage in the litigation * * * where the facts
necessary to establish the defense are evident on the face of the complaint.”).
Moreover, “the affirmative defense of exhaustion is subject to estoppel.” Ziemba v.
Wezner, 366 F.3d 161, 163 (2d Cir. 2004); see also Ruggiero v. County of Orange, 467 F.3d 170,
178 (2d Cir. 2006). “A prisoner may invoke the doctrine of estoppel when defendants took
affirmative action to prevent him from availing himself of grievance procedures.” Amador, 655
F.3d at 103 (quotations and citation omitted); see also Ruggiero, 467 F.3d at 178. “[V]erbal and
physical threats of retaliation, physical assault, denial of grievance forms or writing implements,
and transfers constitute such affirmative action.” Amador, 655 F.3d at 103.
The Second Circuit formulated the following three (3)-part test in determining a failure to
exhaust affirmative defense:
20

“Depending on the inmate’s explanation for the alleged failure to exhaust, the
court must ask whether administrative remedies were in fact available to the
prisoner. The court should also inquire as to whether the defendants may have
forfeited the affirmative defense of non-exhaustion by failing to raise or preserve
it, or whether the defendants’ own actions inhibiting the inmate’s exhaustion of
remedies may estop one or more of the defendants from raising the plaintiff’s
failure to exhaust as a defense. If the court finds that administrative remedies
were available to the plaintiff, and that the defendants are not estopped and have
not forfeited their non-exhaustion defense, but that the plaintiff nevertheless did
not exhaust available remedies, the court should consider whether special
circumstances have been plausibly alleged that justify the prisoner’s failure to
comply with administrative procedural requirements.”
Macias, 495 F.3d at 41 (quoting Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)); see
also Amador, 655 F.3d at 102. “If any of the three parts is satisfied, the prisoner is deemed to
have exhausted internal procedures for purposes of the PLRA.” Amador, 655 F.3d at 102.

1.

Tedesco’s Grievances

Tedesco alleges, inter alia, (1) that he filed a grievance with respect to his claims against
Dr. Kay-Njemanzi concerning her conduct on or about July 26, 2011, (Tedesco Compl., ¶ 37);
and (2) that on or about August 30, 2011, the grievance coordinator, Mrs. Boyce, (a) told him (i)
that his grievance was denied, but refused to tell him why, and (ii) that she was reporting on the
grievance that he refused to sign it, even though he indicated to her that he wanted to sign the
grievance and had marked on the grievance that he wanted to appeal it, and (b) refused (i) to
allow him his right to appeal the grievance, (ii) to provide him with a copy of the grievance, and
(iii) to provide him with the grievance number and date of the grievance, (id., ¶¶ 55-58). Those
allegations are sufficient at the pleadings stage to withstand dismissal for failure to exhaust
administrative remedies on the basis that, if proven, defendants may be estopped from raising

21

Tedesco’s failure to exhaust as an affirmative defense with respect to his claims against Dr. KayNjemanzi relating to her treatment of him on or about July 26, 2011.
In addition, Tedesco alleges that “[i]t is essential for an inmate to exhaust their [sic] state
remedies prior to filing a Lawsuit under [Section 1983],” (id., ¶ 18), but the NCCC “stonewalls
the Grievance process[,]” (id., ¶ 17), by setting up a system “so that the Grievances never leave
the jail or go to Albany” and depriving the inmates of “any representation on the inmate
Grievance Committee.” (Id., ¶ 18). Those latter allegations are conclusory and, thus, not entitled
to the assumption of truth. In any event, as Tedesco does not allege that he completed even the
first step of the grievance procedure with respect to the other conduct challenged in his
complaint, including his claim that Dr. Kay-Njemanzi intentionally deprived him of his “bland
diet food tray,” nor any basis upon which it may reasonably be inferred that administrative
remedies were not available to him with respect to such conduct; that defendants may have
forfeited, or may be estopped from raising, the affirmative defense of non-exhaustion; or that
special circumstances otherwise exist justifying his failure to exhaust those claims, the branch of
the Armor/Miller defendants’ motion seeking dismissal of Tedesco’s Section 1983 claims against
them pursuant to the PLRA is granted to the extent that Tedesco’s Section 1983 claims against
the Armor/Miller defendants, with the exception of his Section 1983 claim based upon Dr. KayNjemanzi’s medical treatment of him on or about July 26, 2011, are dismissed in their entirety
with prejudice for his failure to exhaust administrative remedies.

2.

Young’s Grievances

At the time Young filed this action, he was incarcerated at the “Riverview [sic]
22

Correctional Facility,” and was no longer incarcerated at the NCCC. (Young Compl., ¶ II).
Young alleges that he did not file a grievance with respect to any of his claims because he “ha[s]
not needed to grieve anyone at Riverview [sic] Correctional Facility.” (Id., ¶ II.D).
Since, inter alia, it is clear from the face of Young’s complaint that he did not exhaust all
available administrative remedies, and there are no allegations in the complaint from which it
may reasonably be inferred that administrative remedies were not available to him with respect to
such conduct; that defendants may have forfeited, or may be estopped from raising, the
affirmative defense of non-exhaustion; or that special circumstances otherwise exist justifying his
failure to exhaust those claims, the branch of the Medical/Dental defendants’ motion seeking
dismissal of his Section 1983 claims pursuant to the PLRA is granted and Young’s Section 1983
claims against the Medical/Dental defendants are dismissed in their entirety with prejudice for
his failure to exhaust administrative remedies.

3.

Marone’s Grievances

Marone alleges, inter alia, that there is a prisoner grievance procedure in the NCCC; that
he spoke with the medical staff, submitted sick call slips and contacted the New York Civil
Liberties Union (“NYCLU”), which called the jail and Sheriff Sposato, regarding his failure to
get his Neurontin medication; and that he submitted a grievance regarding the failure to get his
medication on May 14, 2014. (Marone Compl., ¶¶ II, IV[2]). Although Marone also alleges that
“[n]othing was resolved” and that he is “still not receiving Neurontin medication or the [h]igh
[c]alorie meal[,]” (id., ¶ II[C][2]), elsewhere in his complaint he alleges that he was seen by a
nurse practitioner the day after he submitted the grievance and that he was prescribed Neurontin
23

on May 30, 2014 and again on June 4, 2014, after a one (1)-day interruption. (Id., ¶ IV[7]).
The documents submitted by Marone in opposition to the Armor/Sanchez defendants’
motion indicate, inter alia, that administrative remedies were available to inmates at the NCCC,
i.e., an inmate grievance process that complies with the New York regulations setting forth the
minimum standards and regulations for the management of county jails and penitentiaries; and
that Marone exhausted those administrative remedies with respect to at least the May Grievance,
which pertained to both of his claims against the Armor/Sanchez defendants. Accordingly, the
branch of the Armor/Sanchez defendants’ motion seeking dismissal of Marone’s claims against
them based upon his failure to exhaust administrative remedies in accordance with 42 U.S.C. §
1997e(a) is denied.

C.

Section 1983 Claims

Section 1983 of Title 42 of the United States Code provides, in relevant part:
“[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes to
be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured . . . .”
To state a claim under Section 1983, a plaintiff must allege (1) that the challenged conduct was
“committed by a person acting under color of state law,” and (2) that such conduct “deprived [the
plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United
States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d
545, 547 (2d Cir. 1994)); see also Rehberg v. Paulk, 132 S. Ct. 1497, 1501-02, 182 L. Ed. 2d 593
(2012).
24

1.

Deprivation of a Constitutional or Federally Protected Right

Prison officials have a duty, imposed under either the Eighth Amendment with respect to
convicted prisoners or the Due Process Clauses of the Fifth and Fourteenth Amendments with
respect to pretrial detainees in federal custody and state custody, respectively,6 to “ensure that
inmates receive adequate food, clothing, shelter, and medical care, and [to] take reasonable
measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832-33, 114
S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (quotations and citations omitted). Tedesco and Marone
seek to assert claims against Armor and/or its employees, and Young seeks to assert claims
against the Medical/Dental defendants, for deliberate indifference to their serious medical needs.
Such claims have both an objective and subjective component. See Collazo v. Pagano, 656 F.3d
131, 135 (2d Cir. 2011); Hill, 657 F.3d at 122.
The objective component of a deliberate indifference claim requires that “the alleged
deprivation * * * be sufficiently serious, in the sense that a condition of urgency, one that may
produce death, degeneration, or extreme pain, exists.” Hill, 657 F.3d at 122 (quoting Hathaway
v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)); see also Farmer, 511 U.S. at 834, 114 S. Ct. 1970
(“First, the deprivation alleged must be, objectively, sufficiently serious.” (quotations and
citation omitted)). In order to determine whether an alleged deprivation of medical care was
objectively serious, the court must inquire (1) whether the inmate was “actually deprived of
adequate medical care,” i.e., whether the prison officials acted reasonably in response to the

6

The same “deliberate indifference” standard applies to claims challenging prison conditions
regardless of whether the claim is brought under the Eighth Amendment or the Due Process
Clauses of the Fifth and Fourteenth Amendments. See Caiozzo v. Koreman, 581 F.3d 63, 70-1
(2d Cir. 2009).
25

inmate’s medical needs; and (2) “whether the inadequacy in medical care [was] sufficiently
serious,” i.e., how the challenged conduct was inadequate and what harm, if any, the inadequacy
has caused or will likely cause the inmate. Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir.
2006); see also Thompson v. Racette, 519 F. App’x 32, 33-34 (2d Cir. June 4, 2013) (summary
order).
“[I]f the unreasonable medical care is a failure to provide any treatment for an inmate’s
medical condition, courts examine whether the inmate’s medical condition is sufficiently
serious.” Salahuddin, 467 F.3d at 280. “In cases where the inadequacy is in the medical
treatment given, the seriousness inquiry is narrower[,]” id., and the focus is “on the alleged
inadequate treatment, not the underlying condition alone.” Butler v. Furco, No. 13-4663-PR,
2015 WL 5010121, at *1 (2d Cir. Aug. 25, 2015) (summary order). “When the basis for a
prisoner’s [deliberate indifference] claim is a temporary delay or interruption in the provision of
otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or
interruption in treatment rather than the prisoner’s underlying medical condition alone in
analyzing whether the alleged deprivation is, in objective terms, sufficiently serious to support
a[] [deliberate indifference] claim.” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)
(emphasis, quotations and citations omitted); see also Bellotto v. County of Orange, 248 F.
App’x 232, 236 (2d Cir. Sept. 25, 2007) (summary order) (“When a prisoner alleges a temporary
delay or interruption in the provision of otherwise adequate medical treatment, [courts] focus on
the seriousness of the particular risk of harm that resulted from the challenged delay or
interruption in treatment rather than the prisoner’s underlying medical condition alone.”
(quotations and citation omitted)). “[I]t’s the particular risk of harm faced by a prisoner due to
26

the challenged deprivation of care, rather than the severity of the prisoner’s underlying medical
condition, considered in the abstract, that is relevant * * *.” Smith, 316 F.3d at 186; see also
Salahuddin, 467 F.3d at 280. In evaluating the objective component of a deliberate indifference
claim based upon a delay or interruption in treatment, courts must “focus[] on the particular risks
attributable to the missed * * * medication [or other delay or interruption in treatment], rather
than on [the plaintiff’s underlying medical condition alone] * * *.” Smith, 316 F.3d at 187.
Where the “risk of harm” the plaintiff faced as a result of missed medication, or other delay in
treatment, is “not substantial,” there is no constitutional violation. Bellotto, 248 F. App’x at 237.
“Subjectively, the official must have acted with the requisite state of mind, the
‘equivalent of criminal recklessness,’” Collazo, 656 F.3d at 135 (quoting Hathaway, 99 F.3d at
553); see also Farmer, 511 U.S. at 834, 114 S. Ct. 1970 (holding that the second requirement for
a deliberate indifference claim is that a prison official must have acted or failed to act with a
“sufficiently culpable state of mind.”); Wilson v. Seiter, 501 U.S. 294, 299, 111 S. Ct. 2321, 115
L. Ed. 2d 271 (1991) (holding that a deliberate indifference claim “mandate[s] inquiry into a
prison official’s state of mind.”), i.e., the official must have “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; see also Farmer, 511 U.S. at 842, 114 S. Ct. 1970; Caiozzo, 581 F.3d at 72 (holding that the
plaintiff must establish that the official “knew of and disregarded an excessive risk to [the
plaintiff’s] health or safety and * * * was both aware of facts from which the inference could be
drawn that a substantial risk of serious harm existed, and also drew the inference.” (alterations
and quotations omitted)). “[D]eliberate indifference describes a state of mind more blameworthy
than negligence.” Farmer, 511 U.S. at 835, 114 S. Ct. 1970; see also Walker, 717 F.3d at 125.
27

Generally, “mere allegations of negligent malpractice do not state a claim of deliberate
indifference.” Hathaway, 99 F.3d at 553; see also Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct.
285, 50 L. Ed. 2d 251 (1976) (“[A] complaint that a physician has been negligent in diagnosing
or treating a medical condition does not state a valid claim * * * under the Eighth Amendment.
Medical malpractice does not become a constitutional violation merely because the victim is a
prisoner.”); Hill, 657 F.3d at 123 (“Medical malpractice does not rise to the level of a
constitutional violation unless the malpractice involves culpable recklessness– an act or a failure
to act by a prison doctor that evinces a conscious disregard of a substantial risk of serious harm.”
(quotations and citation omitted)); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003)
(“‘Deliberate indifference’ describes a mental state more blameworthy than negligence * * *
[and] is a state of mind that is the equivalent of criminal recklessness. * * * A showing of
medical malpractice is therefore insufficient to support an Eighth Amendment claim unless the
malpractice involves culpable recklessness, i.e., an act or a failure to act * * * that evinces a
conscious disregard of a substantial risk of serious harm.” (internal quotations and citations
omitted)).
Moreover, “a prisoner does not have the right to choose his medical treatment as long as
he receives adequate treatment.” Hill, 657 F.3d at 123; see also Hanrahan v. Mennon, 470 F.
App’x 32, 33 (2d Cir. May 18, 2012) (summary order). “[M]ere disagreement over the proper
treatment does not create a constitutional claim.” Hill, 657 F.3d at 123 (quoting Chance v.
Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)); see also Bolden v. County of Sullivan, 523 F.
App’x 832, 834 (2d Cir. May 6, 2013) (summary order). “[T]he essential test is one of medical
necessity and not one simply of desirability.” Hill, 657 F.3d at 123 (quoting Dean v. Coughlin,
28

804 F.2d 207, 215 (2d Cir. 1986)).

a.

Tedesco’s Claims

Except for his claims against Dr. Kay-Njemanzi, the basis of Tedesco’s deliberate
indifference claims is essentially that on June 20, 2011, there was a temporary interruption in the
treatment of his spinal condition by unidentified medical staff who refused to treat him; and that
on July 24, 2011, Nurse Miller delayed treating the injuries he sustained the previous evening for
approximately one (1) hour.7 Thus, with respect to those claims, the focus is on the particular
risks attributable to the interruption and delay in treatment. See Smith, 316 F.3d at 187.
Tedesco alleges only that he was unable to sleep after the unidentified medical staff
refused to treat his spinal condition on June 20, 2011, and that he was in pain for the approximate
one (1) hour that Nurse Miller delayed treating his injuries on July 24, 2011. Tedesco does not
allege, inter alia, that the interruption or delay in treatment exacerbated his spinal condition or
injuries or subjected him to an increased risk of harm; nor that he suffered any other

7

Tedesco’s allegations regarding Nurse Miller’s bedside manner, and Marone’s allegation
regarding Parrinello’s sarcasm, even if rising to the level of verbal harassment, do not state a
claim for a constitutional violation. See, e.g. Little v. Municipal Corp., 51 F. Supp. 3d 473, 500
(S.D.N.Y. 2014) (“[V]erbal harassment or profanity alone, unaccompanied by any injury, no
matter how inappropriate, unprofessional, or reprehensible it might seem, does not constitute the
violation of any federally protected right and therefore is not actionable under 42 U.S.C. § 1983.”
(quotations and citation omitted)); Cotz v. Mastroeni, 476 F. Supp. 2d 332, 372 (S.D.N.Y. 2007)
(holding that verbal threats or abuse are not sufficient to state a constitutional violation); Tutora
v. Correctional Med. Care, Inc., No. 9:10-cv-0207(MAD/TWD), 2012 WL 1898871, at * 8
(N.D.N.Y. Apr. 30, 2012), report and recommendation adopted by 2012 WL 1898915 (N.D.N.Y.
May 23, 2012) (“Although Plaintiff may not have liked the tone that [the defendant] took with
him, mere words are not actionable civil rights violations.”); Savage v. Brue, No. 9:05-cv-857,
2007 WL 3047110, at * 5 (N.D.N.Y. Oct. 18, 2007) (“[A]n allegation of callous laughter does
not, in and of itself, appear to plausibly suggest deliberate indifference[.]”)
29

consequential injurious effects therefrom. In sum, the lapses in treatment were “minor and
inconsequential” and, thus, insufficient to satisfy the objective prong of a Section 1983 deliberate
indifference to medical needs claim. See, e.g. Vansertima v. Department of Corrections, No. 10cv-3214(RJD), 2012 WL 4503412, at * 6 (E.D.N.Y. Sept. 28, 2012). As it can not reasonably be
inferred from the factual allegations in Tedesco’s complaint that he faced a substantial risk of
harm as a result of those minor delays and interruptions in treatment, the complaint fails to state a
constitutional violation with respect to his claims regarding his treatment on June 20, 2011 and
by Nurse Miller on July 24, 2011. See, e.g. Bellotto, 248 Fed. Appx. at 237.
Tedesco’s claim that Dr. Kay-Njemanzi refused to send him for an MRI does not satisfy
the objective element of a Section 1983 deliberate indifference claim because he was not actually
deprived of adequate medical care. Although Tedesco alleges that Dr. “Cosstello” recommended
that he undergo an MRI of his back, Dr. Kay-Njemanzi determined instead that he should first
have x-rays taken of his back, which Tedesco refused to do. “While, ‘[i]n certain instances, a
physician may be deliberately indifferent if he or she consciously chooses an easier and less
efficacious treatment plan,’” Thompson, 519 F. App’x at 34 (quoting Chance, 143 F.3d at 703
(internal quotation marks omitted)), Tedesco has not alleged any facts from which it may
reasonably be inferred that Dr. Kay-Njemanzi’s recommendation to send Tedesco for an x-ray
was any less efficacious than Dr. “Cosstello’s” recommendation to send him for an MRI, see id.,
nor that the refusal to send Tedesco for an MRI exacerbated his injuries, subjected him to an
increased risk of harm, or had any injurious effect upon him. “[M]ere disagreement over the
proper treatment does not create a constitutional claim. So long as the treatment given is
adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth
30

Amendment violation.” Chance, 143 F.3d at 703; see also Hill, 657 F.3d at 123 (“It has long
been the rule that a prisoner does not have the right to choose his medical treatment as long as he
receives adequate treatment.”) Moreover, there are no factual allegations in Tedesco’s complaint
from which it may reasonably be inferred that Dr. Kay-Njemanzi acted with a sufficiently
culpable state of mind in failing to provide Tedesco with the treatment he desired when he
refused to follow her recommended course of treatment. Accordingly, the branch of the
Armor/Miller defendants’ motion seeking dismissal of Tedesco’s Section 1983 claims against
them pursuant to Rule 12(b)(6) is granted to the extent that Tedesco’s Section 1983 claims
against Nurse Miller and the unidentified employees of Armor who treated Tedesco on June 20,
2011, and his claim relating to Dr. Kay-Njemanzi’s treatment of him on or about July 26, 2011,
are dismissed in their entirety with prejudice for failure to state a claim for relief, and the motion
is otherwise denied.8

b.

Young’s Allegations

Initially, since Young does not allege the personal involvement of anyone from the dental

8

Although Tedesco’s claim that he experienced stomach pain and blood in his stool “for
months” after Dr. Kay-Njemanzi intentionally deprived him of receiving his “bland diet food
tray” in retaliation for his filing of a grievance against her may be sufficient to satisfy both
components of a deliberate indifference claim at the pleadings stage[,] see, e.g. Rodriguez v.
Warden, Metro. Corr. Facility, No. 13 Civ. 3643, 2015 WL 857817, at * 13 (S.D.N.Y. Feb. 27,
2015) (finding that blood in the stool, inter alia, persisting for a “prolonged period of time”
presents “a serious risk of harm to [the plaintiff’s] health and safety” sufficient to satisfy the
objective element of a deliberate indifference claim); Archer v. Dutcher, 733 F.2d 14, 17 (2d Cir.
1984) (finding that the subjective element may be met where “legitimate medical claims were
deliberately disregarded as punishment for past breaches of the disciplinary code, or for other
invalid reasons”), for the reasons set forth above, that claim is dismissed for Tedesco’s failure to
exhaust administrative remedies in accordance with the PLRA.
31

staff in the purported conduct challenged in his complaint, his complaint fails to state a Section
1983 cause of action against the Dental Staff as a matter of law. See Littlejohn v. City of New
York, 795 F.3d 297, 314 (2d Cir. 2015) (“An individual may be held liable under * * * [Section]
1983 only if that individual is personally involved in the alleged deprivation. (quotations and
citation omitted)); Spavone v. New York State Dep't of Corr. Servs., 719 F.3d 127, 135 (2d Cir.
2013) (“[P]ersonal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983. (quotations and citation omitted)). Moreover,
Young does not allege any delay in treating the insect bite; nor does he challenge the adequacy of
such treatment. Accordingly, that allegation fails to state a plausible claim for a deprivation of a
constitutional or federally protected right.
Assuming, arguendo, that Young’s allegations that there was a one (1) week delay in
providing him medical treatment for an infection on his finger and that the delay exacerbated the
infection are sufficient to satisfy the objective element of a Section 1983 deliberate indifference
claim, his complaint is devoid of any factual allegations from which it may reasonably be
inferred that the Medical Staff acted with the requisite culpable state of mind. Indeed, the
complaint does not even contain any allegations from which the cause of the purported delay may
reasonably be inferred. Accordingly, the branch of the Medical/Dental defendants’ motion
seeking dismissal of Young’s Section 1983 claims against them pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure is granted and Young’s Section 1983 claims against the
Medical/Dental defendants are dismissed in their entirety with prejudice for failure to state a
claim for relief.

32

c.

Marone’s Claims

Marone essentially alleges that there was delay in prescribing him pain medication for his
purported neuropathy condition; that there was a one (1)-day interruption in his medication,
purportedly caused by Ms. Hunt, once the medication was prescribed; and that he was never
prescribed a high calorie diet. The documents submitted by Marone in opposition to the
Armor/Sanchez defendants’ motion establish, inter alia, (a) that he submitted his first SCR on
May 9, 2014, two (2) days after returning to the NCCC, indicating only that he was not receiving
the Neurontin he had previously taken nor the high calorie diet he needed because he lost weight
rapidly due to an unspecified medical condition; (b) that he was examined by Dr. Sanchez within
three (3) days of submitting the first SCR, but Dr. Sanchez refused to prescribe him the
Neurontin and high calorie diet; (c) that the day after Dr. Sanchez refused to prescribe the
Neurontin or high calorie diet, he submitted a second SCR, this time indicating, inter alia, (i) that
he was experiencing sharp pains and numbness in his left leg, (ii) that he had been taking
Neurontin since 2011 and had previously been given a high calorie diet, and (iii) that he was
experiencing headaches and stomach pains since he was no longer getting the high calorie meal;
(d) that two (2) days after submitting the second SCR, and less than one (1) week after
submitting the first SCR, he was seen by Parrinello, who (i) prescribed him a different pain killer
than the one he requested, i.e., Naprosyn, to try for one (1) week, and (ii) informed him that he
did not qualify to receive a high calorie diet at that time; (e) that two (2) days after Parrinello
prescribed him Naprosyn to try for one (1) week, he submitted a third SCR indicating (i) that he
was still having pain in his left leg and “extreme numbness” in his foot and toes, (ii) that he was
having trouble sleeping due to the leg pain and stomach pain, and (iii) that he was getting
33

headaches because he was hungry, and again requesting that he be prescribed his “usual
medication” and a high calorie diet; (f) that three (3) days after submitting the third SCR, he
weighed 150-151 pounds and was treated by Ms. Hunt, who refused (i) to prescribe him a high
calorie diet on the basis that such diets were only prescribed for patients with cancer or HIV and
(ii) to prescribe him Neurontin on the basis that “they” did not prescribe medication stronger than
Naprosyn; (g) that five (5) days after Parrinello had prescribed him Naprosyn to try for one (1)
week, he submitted a fourth SCR (i) indicating that he still had pain and numbness in his left leg
and that the Naprosyn was not helping his condition and (ii) requesting that his weight be
checked, that he be seen by a specialist and that he speak with the medical director; (h) that the
day after submitting the fourth SCR, and only six (6) days after Parrinello had prescribed him
Naprosyn to try for one (1) week, he submitted a fifth SCR indicating that he was still having
pain in his left leg and that he had been prescribed Neurontin and a high calorie diet while
previously incarcerated in the “main part” of the NCCC less than one (1) month earlier; (j) that
two (2) days after submitting the fourth SCR, and one (1) day after submitting the fifth SCR, he
was seen by Parrinello, who told him (i) that he was awaiting the results of Marone’s blood tests
before prescribing him Neurontin and (ii) that his weight would be checked every six (6) weeks
to monitor his condition; (k) that two (2) days later, he was again seen in the medical unit to have
his weight checked, at which time he weighed approximately five (5) pounds more than he had
when Ms. Hunt weighed him four (4) days earlier; (l) that the next day, and three (3) days after
Parrinello told him that he was awaiting Marone’s blood test results before prescribing him
Neurontin, he submitted a sixth SCR indicating, in relevant part, that the pain in his left leg was
worsening; (m) that five (5) days after submitting the sixth SCR, and eight (8) days after
34

Parrinello told him he was awaiting the blood test results, Parrinello prescribed him Neurontin,
but at a smaller dose than he had previously been prescribed, and told him that he would increase
the dosage in two (2) weeks if he was still experiencing pain; (n) that the next day, (i) he weighed
four a half (4.5) pounds more than he had eight (8) days earlier and (ii) he submitted a seventh
SCR indicating that the Neurontin was helping, but he was getting shooting pains in his leg in the
late evening and at night which disturbed his sleep; (o) that two (2) days later, (i) he weighed two
and a half (2.5) pounds more than he had two (2) days earlier, and (ii) he submitted an eighth
SCR indicating that he was told (A) that his Neurontin had been discontinued “for some reason”
and (B) by a physician’s assistant named Francis that Ms. Hunt had discontinued his medication
because he had not been taken it “on the outside;” (p) that the following day, he was put back on
the Neurontin; and (q) that he continued to be administered Neurontin until no later than July 30,
2014. There is no indication that any medical personnel ever prescribed, nor that Marone ever
even requested, physical therapy for his neuropathy.
Marone generally received adequate medical treatment, albeit not the treatment he
desired, within two (2) to three (3) days, and no more than five (5) days, after submitting an SCR,
and his disagreement over the treatment he received does not state a claim for the deprivation of
a constitutional or federally protected right. See Hill, 657 F.3d at 123; Chance, 143 F.3d at 703.
“Where the care provided is otherwise adequate, disagreements over medications and forms of
treatment are not adequate grounds for a Section 1983 claim, for these issues implicate medical
judgments.” Alster v. Goord, 745 F. Supp. 2d 317, 335 (S.D.N.Y. 2010) (quotations, brackets
and citation omitted); see also Price v. Reilly, 697 F. Supp. 2d 344, 360 (E.D.N.Y. 2010)
(“[M]ere disagreement with a prescribed medication dosage is insufficient as a matter of law to
35

establish the subjective prong of deliberate indifference.) At most, the facts alleged in Marone’s
complaint, and established by the documents he submitted, state a claim for medical malpractice,
which, absent any evidence of culpable recklessness, are insufficient to state a claim of deliberate
indifference, see Estelle, 429 U.S. at 106, 97 S. Ct. 285, and Marone has not alleged any facts
supporting a reasonable inference that any of the Armor/Sanchez defendants acted with the
requisite culpable state of mind. Accordingly, the branch of the Armor/Sanchez defendants’
motion seeking dismissal of Marone’s Section 1983 claims against them pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure is granted and Marone’s Section 1983 claims
against the Armor/Sanchez defendants are dismissed in their entirety with prejudice for failure to
state a claim for relief.

2.

Claims against Armor9

“Private employers [acting under color of state law] are not liable under Section 1983 for
the constitutional torts of their employees * * * unless the plaintiff proves that action pursuant to
official . . . policy of some nature caused a constitutional tort.” Rojas v. Alexander’s Dep’t Store,
Inc., 924 F.2d 406, 408 (2d Cir. 1990); see also Green v. City of New York, 465 F.3d 65, 82 (2d
Cir. 2006) (finding that a hospital was not vicariously liable for any constitutional torts that its
employees may have committed). To prevail on a Section 1983 claim against a municipality or
private company acting under color of state law, a plaintiff must show: “(1) actions taken under
color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and

9

Only Tedesco and Marone assert claims directly against Armor.
36

(5) that an official policy of the municipality [or private company acting under color of state law]
caused the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008); see
also Connick v. Thompson, 563 U.S. 51, 131 S. Ct. 1350, 1359, 179 L. Ed. 2d 417 (2011)
(“Plaintiffs who seek to impose liability on local governments under Section 1983 must prove
that ‘action pursuant to official municipal policy’ caused their injury.” (quoting Monell v.
Department of Soc. Servs. of City of New York, 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d
611 (1978)); Rojas, 924 F.2d at 409 (“Although Monell dealt with municipal employers, its
rationale has been extended to private businesses [acting under color of state law].”) For
purposes of this motion, damages are presumed. Moreover, although Armor is a private
company contracted to perform medical services for prisoners at the NCCC, see, e.g., Briel v.
Sposato, No. 12-CV-2868, 2012 WL 3697806, at *5 (E.D.N.Y. Aug. 21, 2012), “anyone whose
conduct is ‘fairly attributable to the state’ can be sued as a state actor under § 1983.” Filarsky v.
Delia, --- U.S. ----, 132 S. Ct. 1657, 1661, 182 L. Ed. 2d 662 (2012); see also Hollander v.
Copacabana Nightclub, 624 F.3d 30, 33 (2d Cir. 2010). As the entity with which the NCCC
contracted to provide medical services to its prisoners, Armor was acting under color of state law
for purposes of Section 1983 with respect to its duties in rendering such medical services to the
Armor plaintiffs. See West v. Atkins, 487 U.S. 42, 54, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988)
(holding that a physician employed to provide medical services to state prisoners “acted under
color of state law for purposes of Section 1983 when undertaking his duties in treating [the
plaintiff’s] injuries.”)
However, for the reasons set forth above, with the exception of Tedesco’s claim that Dr.
Kay-Njemanzi deprived him of a “bland diet food tray,” which is dismissed for failure to exhaust
37

administrative remedies, the allegations in Tedesco’s and Marone’s complaints fail to state a
plausible claim of a deprivation of a constitutional or federally protected right.
Moreover, the allegations in Tedesco’s and Marone’s complaints fail to state a plausible
claim of an official policy or custom. “Official * * * policy includes the decisions of a
government’s lawmakers, the acts of its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.” Connick, 563 U.S. 51, 131 S. Ct. at 1359. In
addition, liability can be established “by showing that a policymaking official ordered or ratified
the employee’s actions - either expressly or tacitly.” Jones v. Town of East Haven, 691 F.3d 72,
81 (2d Cir. 2012), cert. denied, 134 S. Ct. 125, 187 L. Ed. 2d 255 (2013). “Thus, a plaintiff can
prevail against a municipality [or private company acting under color of state law] by showing
that the policymaking official was aware of the employee’s unconstitutional actions and
consciously chose to ignore them.” Id. To establish such deliberate indifference, “a plaintiff
must show that a policymaking official was aware of constitutional injury, or the risk of
constitutional injury, but failed to take appropriate action to prevent or sanction violations of
constitutional rights.” Id.

a.

Tedesco’s Claims

An official policy or custom of Armor cannot be inferred from Tedesco’s allegations in
his complaint due to, inter alia, his failure to allege the personal involvement of any employee of
Armor with final policymaking authority in the conduct alleged in his complaint or that any
policymaking official was even aware of the conduct plausibly rising to the level of a
constitutional violation, i.e., one (1) occasion where Dr. Kay-Njemanzi purportedly retaliated
38

against him for his filing of a grievance against her, much less “consciously chose to ignore [it].”
Jones, 691 F.3d at 81; see also Giaccio v. City of New York, 308 F. App’x 470, 472 (2d Cir. Jan.
23, 2009) (holding that isolated incidents by non-policymaking employees are insufficient to find
a policy or custom under Monell). Accordingly, the branch of the Armor/Miller defendants’
motion seeking dismissal of Tedesco’s claims against Armor pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure is granted and Tedesco’s Section 1983 claims against Armor
are dismissed in their entirety with prejudice for failure to state a claim for relief.

b.

Marone’s Claims

Marone’s sole allegation against Armor, i.e., that Armor “continues to make oversight on
medical policies and procedures practiced at the [NCCC][,]” (Marone Compl., ¶ IV[2]), is
insufficient to state a Section 1983 Monell claim against Armor. See, e.g. Biswas v. City of New
York, 973 F. Supp. 2d 504, 539 (S.D.N.Y. 2013) appeal dismissed sub nom. Biswas v. Kwait,
576 F. App’x 58 (2d Cir. 2014), as amended (Aug. 28, 2014) (“[C]onclusory, boilerplate
allegations are insufficient to state a claim based on the existence of an official policy.”);
Solomon v. Nassau Cnty., 759 F. Supp. 2d 251, 263 (E.D.N.Y. 2011) (“Conclusory allegations of
municipal custom or policy are insufficient to satisfy [Monell].”) Accordingly, the branch of the
Armor/Sanchez defendants’ motion seeking dismissal of Marone’s Section 1983 claims against
Armor pursuant to Rule 12(b)(6) is granted and Marone’s Section 1983 claims against Armor are
dismissed in their entirety with prejudice for failure to state a claim for relief.

39

3.

Claims for Declaratory and Injunctive Relief

“[A]n inmate’s transfer from a prison facility generally moots claims for declaratory and
injunctive relief against officials of that facility.” Salahuddin, 467 F.3d at 272; accord Shepherd
v. Goord, 662 F.3d 603, 610 (2d Cir. 2011). Since Tedesco and Marone are no longer
incarcerated at the NCCC, the branches of the Armor/Miller defendants’ and Armor/Sanchez
defendants’ motions seeking dismissal of their claims for injunctive and declaratory relief are
granted and Tedesco’s claims for injunctive and declaratory relief, and Marone’s claim for
injunctive relief, are dismissed in their entirety as moot.

III.

CONCLUSION
For the reasons set forth above, (1) the Armor/Miller defendants’ motion seeking

dismissal of Tedesco’s Section 1983 claims against them pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure and the PLRA is granted to the extent that (a) with the exception of
Tedesco’s claim that Dr. Kay-Njemanzi deprived him of a “bland diet food tray,” his Section
1983 claims against the Armor/Miller defendants are dismissed in their entirety with prejudice
for failure to state a claim for relief, and (b) with the exception of Tedesco’s claim regarding Dr.
Kay-Njemanzi’s treatment of him on or about July 26, 2011, his Section 1983 claims against the
Armor/Miller defendants are dismissed in their entirety with prejudice for his failure to exhaust
administrative remedies, and the Armor/Miller defendants’ motion is otherwise denied; (2) the
Medical/Dental defendants’ motion seeking dismissal of Young Section 1983 claims against
them pursuant to Rule 12(b)(6) and the PLRA is granted and Young’s Section 1983 claims
against the Medical/Dental defendants are dismissed in their entirety with prejudice for failure to
40

exhaust administrative remedies and to state a claim for relief; and (3) the branch of the
Armor/Sanchez defendants’ motion seeking dismissal of Marone’s Section 1983 claims against
them pursuant to Rule 12(b)(6) is granted and Marone’s Section 1983 claims against the
Armor/Sanchez defendants are dismissed in their entirety with prejudice for failure to state a
claim for relief, and the motion is otherwise denied. There being no just reason for delay, the
Clerk of the Court shall enter judgment (1) in favor of the Armor/Miller defendants on Tedesco’s
claims against them; (2) in favor of the Medical/Dental defendants on Young’s claims against
them; and (3) in favor of the Armor/Sanchez defendants on Marone’s claims against them,
pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Pursuant to Rule 77(d)(1) of the
Federal Rules of Civil Procedure, the Clerk of the Court is directed to serve notice of entry of this
order upon all current parties to the consolidated action in accordance with Rule 5(b) of the
Federal Rules of Civil Procedure.
The Court certifies 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).

SO ORDERED.
___________/s/_____________
Sandra J. Feuerstein
United States District Judge
Dated: September 16, 2015
Central Islip, New York

41