Salvana v. New York State Department of Corrections and Community Supervision et al

Filing 37

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED that Plaintiff's motion for reconsideration (Dkt. No. 33 ) is DENIED. It is further ORDERED that Plaintiff's motion for leave to file an amended complaint (Dkt. No. 31 ) is DENIED to th e extent it seeks to assert any claim against DOCCS. It is further ORDERED that Plaintiff's motion for leave to file an amended complaint is otherwise GRANTED. It is further ORDERED that Plaintiff is directed to file the proposed amended complaint, in conformance with the above, by November 28, 2022. Signed by Chief Judge Brenda K. Sannes on 11/18/2022. (nmk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHAEL F. SALVANA, M.D.,
Plaintiff,
v.
NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION,
CARL KOENIGSMANN, M.D., JOHN MORLEY, M.D.,
DAVID S. DINELLO, M.D., PATRICIA HENDERSON,
R.N., and BETTY M. PARKMOND, R.N.,
Defendants.
Appearances:
For Plaintiff:
Carlo A. C. de Oliveira
Cooper Erving & Savage LLP
39 North Pearl Street, 4th Floor
Albany, NY 12207
Richard Condit
Mehri & Skalet, PLLC
2000 K Street, NW, Suite 325
Washington, DC 20006
For Defendants:
Letitia James
New York State Attorney General
Jorge A. Rodriguez
Assistant Attorney General, Of Counsel
The Capitol
Albany, NY 12224

5:21-cv-735 (BKS/ML)

Hon. Brenda K. Sannes, Chief United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Michael F. Salvana, M.D., a former Clinical Physician and Facility Health

Services Director with the New York State Department of Corrections and Community
Supervision (“DOCCS”), brought this action against DOCCS as well as former DOCCS Deputy
Commissioner and Chief Medical Officer Carl Koenigsmann, M.D.; current DOCCS Deputy
Commissioner and Chief Medical Officer John Morley, M.D.; Regional Medical Director for
Elmira and Oneida “HUBS” David S. Dinello, M.D.; DOCCS Deputy Superintendent for Health
Services Patricia Henderson, R.N.; and DOCCS Nurse Director Betty M. Parkmond, R.N. (See
generally Dkt. No. 1 (complaint)). On August 10, 2022 the Court issued a ruling on Defendants’
motion to dismiss the complaint in which it (1) dismissed Plaintiff’s Equal Protection and statelaw claims, (2) dismissed Plaintiff’s claims against DOCCS as barred by the Eleventh
Amendment; and (3) dismissed Plaintiff’s claims against Defendants Koenigsmann and
Parkmond for lack of personal involvement. (Dkt. No. 26). Presently before the Court are
Plaintiff’s motion for reconsideration of the Court’s decision, (Dkt. No. 33), and Plaintiff’s
motion for leave to file an amended complaint, (Dkt. No. 31). Defendants oppose both motions.
(Dkt. No. 36). For the following reasons, Plaintiff’s motion for reconsideration is denied and
Plaintiff’s motion for leave to amend the complaint is granted in part and denied in part.
II.

PROCEDURAL AND FACTUAL BACKGROUND
The Court assumes familiarity with the procedural and factual background of this case, as

set forth in its August 10, 2022 decision. (See Dkt. No. 26).

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III.

MOTION FOR RECONSIDERATION
A.

Standard of Review

In general, a motion for reconsideration may only be granted upon one of three grounds:
(1) an intervening change of controlling law; (2) the availability of new evidence; or (3) the need
to correct a clear error of law or prevent manifest injustice. United States v. Zhu, 41 F. Supp. 3d
341, 342 (S.D.N.Y. 2014) (citing Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d
1245, 1255 (2d Cir. 1992)); see also Shannon v. Verizon N.Y., Inc., 519 F. Supp. 2d 304, 307
(N.D.N.Y. 2007). “[A] motion to reconsider should not be granted where the moving party seeks
solely to relitigate an issue already decided.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d
Cir. 1995). When adjudicating a motion for reconsideration, a court need not consider arguments
that were raised for the first time in the pending motion. See Phillips v. City of New York, 775
F.3d 538, 544 (2d Cir. 2015); Gun Hill Rd. Serv. Station, Inc. v. ExxonMobil Oil Corp., No. 08cv-7956, 2013 WL 1804493, at *1, 2013 U.S. Dist. LEXIS 63207, at *3–4 (S.D.N.Y. Apr. 18,
2013). Moreover, reconsideration “will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked—matters, in other words, that might
reasonably be expected to alter the conclusion reached by the court.” Gun Hill Rd. Serv. Station,
2013 WL 1804493, at *1, 2013 U.S. Dist. LEXIS 63207, at *3 (citing Shrader, 70 F.3d at 257).
“The standard for reconsideration is strict and is committed to the discretion of the court.” SEC v.
Wojeski, 752 F. Supp. 2d 220, 223 (N.D.N.Y. 2010), aff’d sub nom. Smith v. SEC, 432 F. App’x
10 (2d Cir. 2011); see also New York v. Parenteau, 382 F. App’x 49, 50 (2d Cir. 2010)
(summary order) (“A motion for reconsideration is ‘generally not favored and is properly granted
only upon a showing of exceptional circumstances.’” (citation omitted)).

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B.

Analysis

Plaintiff moves for reconsideration of that portion of the Court’s decision dismissing his
Equal Protection claim as duplicative of his First Amendment retaliation claim, arguing that
there is a “need to correct a clear error of law or prevent manifest injustice.” (Dkt. No. 33-2, at
2–3). Plaintiff argues that the “cases relied upon by the Court” “do not support dismissal” of his
Equal Protection claim and that dismissal at this stage would “materially prejudice” him. (Id. at
3). Defendants respond that Plaintiff has not met his burden of showing that the Court erred in
dismissing his Equal Protection claim and that his claim fails for failure to allege facts
“indicating that the motivating factor for the purported adverse actions was anything other than
his decision to speak out and otherwise oppose the [Medications With Abuse Potential
(“MWAP”)] policy.” (Dkt. No. 36, at 8–11).
The Court concludes that Plaintiff’s criticisms of the three cases the Court cited to
support dismissal of his Equal Protection claim as duplicative of his First Amendment retaliation
claim do not warrant reconsideration. 1 First, the Court cited Best Payphones, Inc. v. Dobrin, in
which a payphone company sued the City of New York and individual defendants alleging
constitutional violations “arising from the City’s regulation of pay phones.” 410 F. Supp. 3d 457,
464–65 (E.D.N.Y. 2019). The Eastern District noted that “[c]ourts in the Second Circuit have
dismissed equal-protection claims that merely restate First Amendment retaliation claims” and
dismissed the plaintiff’s Equal Protection claim which was “based on its protected First

Furthermore, Plaintiff has not pointed to “controlling decisions or data that the court overlooked.” Gun Hill Rd. Serv.
Station, 2013 WL 1804493, at *1, 2013 U.S. Dist. LEXIS 63207, at *3. As the Court pointed out in its decision on
Defendants’ motion to dismiss, the cases Plaintiff relied on to argue that his First Amendment and Equal Protection
claims were not duplicative “did not involve First Amendment and Equal Protection claims.” (Dkt. No. 26, at 37
(noting that the relevant cases instead involved state-law tort claims)). Even in his motion for reconsideration, Plaintiff
still has not cited a supportive, on-point case regarding whether a First Amendment retaliation claim and a LeClair
selective enforcement Equal Protection claim are duplicative.
1

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Amendment activity and not personal animus against its owner.” Id. at 483–84 (citations
omitted). Plaintiff argues that Best Payphones is distinguishable because the plaintiff there
“never asserted any equal-protection claim based on personal animus,” see id. at 483, while
Plaintiff has. (Dkt. No. 33-2, at 4–5). Plaintiff points to the complaint’s allegations that
Defendants were “vindictive” and “intentionally treated [Plaintiff] differently than other
similarly situated doctors and medical providers.” (Id. (citing Dkt. No. 1, ¶¶ 160–61)). However,
the Court agrees with Defendants that Plaintiff has not alleged that Defendants’ allegedly
vindictive conduct was “tied to anything other than Plaintiff having allegedly engaged in
[protected] activity.” (Dkt. No. 36, at 9; see Dkt. No. 26, at 36–37 (noting that Plaintiff’s Equal
Protection claim was premised on differential treatment due to his alleged First Amendment
activity)). Plaintiff’s motion for reconsideration likewise asserts that his claim is “focused on
Defendants’ conscious decision to retaliate by treating him differently from other health care
providers” who objected to the MWAP policy. (Dkt. No. 33-2, at 5 (emphasis added)). The only
reasonable reading of the complaint is that Defendants’ alleged conduct was motivated by
Plaintiff’s protected activity. Thus, because his Equal Protection claim is premised on the same
underlying facts as his First Amendment retaliation claim, it is duplicative. See Best Payphones,
410 F. Supp. 3d at 484 (dismissing Equal Protection claim as duplicative where the First
Amendment provided the plaintiff “with an explicit textual source for his alleged constitutional
wrongs” (citing Graham v. Connor, 490 U.S. 386, 395 (1989))). 2

Stated differently, Plaintiff has not plausibly alleged that the alleged selective treatment was motivated by personal
animus unconnected from his alleged protected activity. The Court also notes that the complaint’s allegation that there
was “no rational basis for the treatment Plaintiff received,” (Dkt. No. 1, ¶ 162), would only be relevant to a class-ofone claim brought pursuant to Village of Willowbrook v. Olech, 528 U.S. 562 (2000). Here, however, Plaintiff has
asserted a selective enforcement Equal Protection claim pursuant to LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980).
2

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Second, Plaintiff argues that Frisenda v. Incorporated Village of Malverne, 775 F. Supp.
2d 486 (E.D.N.Y. 2011), does not support dismissal of his Equal Protection claim. (Dkt. No. 332, at 5–6). In Frisenda, a former Lieutenant in the Malverne Police Department brought, among
others, claims asserting violations of his First and Fourteenth Amendment rights. 775 F. Supp. 2d
at 492. After denying the defendants’ motion for summary judgment as to the plaintiff’s First
Amendment retaliation claim, the court addressed his Equal Protection claim. Id. at 517. As
Plaintiff notes, the court held that an Equal Protection claim based on a “class of one” theory
could not survive summary judgment because such claims are unavailable in the public employer
context. Id. at 517–18 (citing Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 605–07 (2008)).
This fact, however, does not warrant reconsideration for at least two reasons. First, Plaintiff’s
opposition to the motion to dismiss made clear that he was asserting a LeClair claim, which is
not the same as the Olech class-of-one Equal Protection claim that was at issue in Frisenda. (See
Dkt. No. 24, at 23; see also Dkt. No. 26, at 35 & n.14 (noting that Plaintiff asserted a LeClair
claim and that an Olech class-of-one claim “has no place in the public employment context”)); 3
see also Hu v. City of New York, 927 F.3d 81, 91–96 (2d Cir. 2019) (distinguishing between
LeClair and Olech claims). Second, the Court’s decision cited a different portion of the Frisenda
court’s analysis of the Equal Protection claim which gave an independent ground for dismissal.
(Dkt. No. 26, at 36 (citing Frisenda, 775 F. Supp. 2d at 518)). Specifically, the court there stated:
“[T]o the extent that plaintiff also may be attempting to assert an equal protection claim based
upon retaliation for First Amendment activity (rather than under [an Olech] class-of-one theory),
such a claim is completely duplicative of the First Amendment retaliation claim and, therefore,
should not go forward.” Frisenda, 775 F. Supp. 2d at 518 (emphasis added) (collecting cases).

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The Court never held that a public employee could not assert a LeClair selective enforcement claim.

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As discussed above, Plaintiff has not plausibly alleged that any differential treatment he
experienced compared to other individuals who complained about the MWAP policy was due to
anything other than his First Amendment activity.
The third case the Court cited was Washington v. Afify, 968 F. Supp. 2d 532 (W.D.N.Y.
2013). Plaintiff argues the Court’s reliance on Washington was “misplaced” because there the
court found that the plaintiff had not “identified any similarly situated individuals who were
treated differently” as required to state an Equal Protection claim, while Plaintiff has alleged
similarly situated comparators. (Dkt. No. 33-2, at 6 (citing Washington, 968 F. Supp. 2d at 541)).
Again, however, the Washington court gave an additional reason for dismissing the Equal
Protection claim—namely, that the plaintiff’s allegations “suggest[ed] that defendants sought to
retaliate against plaintiff because of his grievances” and therefore that his allegations were “more
properly addressed in the context of his retaliation claims.” Washington, 968 F. Supp. 2d at 541
(citations omitted). It was this reasoning the Court cited, and whether or not Plaintiff plausibly
alleged the existence of comparators was not relevant to the Court’s decision.
Finally, Plaintiff cites to a report and recommendation from the Western District of
Pennsylvania and the order adopting it. See Zimmerlink v. Zapotosky, No. 10-cv-237, 2011 U.S.
Dist. LEXIS 53186 (W.D. Pa. Apr. 11, 2011), report and recommendation adopted by 2011 U.S.
53189 (W.D. Pa. May 18, 2011). 4 The report and recommendation determined that the plaintiff’s
Olech class-of-one Equal Protection claim was not duplicative of her First Amendment
retaliation claim because it could be the case that the retaliation claim failed for lack of causation
but that the defendants “nonetheless intentionally treated Plaintiff differently than others
similarly situated with no rational basis.” Zimmerlink, 2011 U.S. Dist. LEXIS 53186, at *24. In a

4

No Westlaw cite is available.

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cursory order adopting the report and recommendation, the Western District of Pennsylvania
stated that “whether the only conduct plaintiff can prove in support of her Equal Protection claim
is duplicative of the activity receiving First Amendment protection is not an appropriate inquiry
at [the motion to dismiss] juncture.” Zimmerlink, 2011 U.S. Dist. LEXIS 53189, at *2. The Court
need not consider Zimmerlink on Plaintiff’s motion for reconsideration, as it is an out-of-Circuit
report and recommendation which Plaintiff could have cited in his opposition to the motion to
dismiss. In any event, Zimmerlink is inapposite as it involved an Olech claim—which is
premised on differential treatment with no rational basis—and not a LeClair claim, which
requires consideration of the defendant’s subjective motivation. As discussed above, Plaintiff has
not plausibly alleged Defendants’ improper subjective motivation in treating him differently
separate and apart from retaliation for protected First Amendment activity.
In sum, none of Plaintiff’s attempts at distinguishing Best Payphones, Frisenda, and
Washington is sufficient to show that the Court made a clear error of law. His motion for
reconsideration is therefore denied.
IV.

MOTION FOR LEAVE TO AMEND
A.

Standard of Review

In general, leave to amend should be freely given “when justice so requires.” Fed. R. Civ.
P. 15(a)(2). A court may, however, “deny leave for good reason, including futility, bad faith,
undue delay, or undue prejudice to the opposing party.” McCarthy v. Dun & Bradstreet Corp.,
482 F.3d 184, 200 (2d Cir. 2007). “Futility is a determination, as a matter of law, that proposed
amendments would fail to cure prior deficiencies or to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure.” Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d
114, 119 (2d Cir. 2012) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 50 (2d Cir.
1991)). In making this determination, the court must “consider ‘the proposed amendment[s] . . .
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along with the remainder of the complaint,’ accept as true all non-conclusory factual allegations
therein, and draw all reasonable inferences in plaintiff’s favor to determine whether the
allegations plausibly give rise to an entitlement to relief.” Id. (internal citation omitted).
B.

Analysis

Plaintiff seeks leave to file an amended complaint which (1) maintains his claims against
DOCCS and adds a request for reinstatement to his previous position as Facility Director of the
Walsh Regional Medical Unit, (2) adds allegations intended to address the personal involvement
of Defendant Parkmond, and (3) includes additional factual allegations to address certain
“concerns raised by the Court” regarding Plaintiff’s First Amendment claim. (Dkt. No. 31, at 2;
see Dkt. No. 31-2 (proposed amended complaint)).
1.

DOCCS

In its decision on Defendants’ motion to dismiss, the Court held that Plaintiff’s Section
1983 claims against DOCCS were barred by sovereign immunity under the Eleventh
Amendment. (Dkt. No. 26, at 14–15). Plaintiff now seeks leave to amend the complaint to add a
request for reinstatement to his previous position as Facility Director. (Dkt. No. 31, at 2).
Plaintiff argues that reinstatement is “prospective injunctive relief that may be ordered against
government employees sued in their official capacities under the Ex Parte Young exception to
the Eleventh Amendment’s sovereign immunity bar.” (Id.). Defendants respond that, while the
Ex parte Young exception allows a claim for prospective injunctive relief to be brought against
individual state officers sued in their official capacities in certain circumstances, it has no
applicability to claims brought against DOCCS itself, which remain barred. (Dkt. No. 36, at 11–
13). The Court agrees.
Sovereign immunity bars a suit in federal court against a state, absent the state’s consent
to suit or congressional abrogation of immunity. See Seminole Tribe of Fla. v. Florida, 517 U.S.
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44, 54–55 (1996). However, under the exception to this rule set forth in Ex parte Young, 209
U.S. 123 (1908), “a plaintiff may sue a state official acting in his official capacity—
notwithstanding the Eleventh Amendment—for prospective, injunctive relief from violations of
federal law.” State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 95 (2d Cir. 2007)
(citation omitted). While this exception allows a plaintiff to seek prospective injunctive relief
from a state official sued in his or her official capacity who has authority to effectuate that relief,
claims against the state itself remain barred. Mann v. N.Y. State Ct. of Appeals, No. 21-cv-49,
2021 WL 5040236, at *5, 2021 U.S. Dist. LEXIS 209018, at *13 (N.D.N.Y. Oct. 29, 2021)
(noting that the exception under Ex parte Young for prospective injunctive relief “only
contemplates action brought against individual defendants in their official capacities, and ‘has no
application in suits against the States and their agencies, which are barred regardless of the relief
sought’” (quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,
146 (1993))). Thus, Plaintiff’s claims against DOCCS itself, regardless of the relief sought, are
barred as a matter of law by sovereign immunity. Plaintiff’s request for leave to amend the
complaint to assert a claim for prospective injunctive relief against DOCCS is therefore denied
as futile.
While the complaint asserted no official capacity claims, Plaintiff’s proposed amended
complaint also seeks to assert claims against Defendants Morley, Dinello, Henderson, and
Parkmond in their official and individual capacities. (Dkt. No. 31-2, ¶¶ 13–16). Defendants do
not address these proposed amendments. “In determining whether the doctrine of Ex parte Young
avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry
into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.” Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Md., 535 U.S.

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635, 645 (2002) (citation omitted). While the Second Circuit has held that “claims for
reinstatement to previous employment satisfy the Ex parte Young exception to the Eleventh
Amendment’s sovereign immunity bar” as prospective injunctive relief, Rowland, 494 F.3d at 96
(collecting cases), it is not clear that Plaintiff has alleged an ongoing violation of his First
Amendment rights. Compare id. at 96–97 (holding that the alleged violation of federal rights was
“ongoing” where the plaintiffs were wrongfully terminated and the state failed to re-hire them or
create new positions, because the state’s failure to act was “both (1) ongoing and (2) potentially
curable by prospective relief”), with Blamah v. New York, No. 19-cv-9234, 2020 WL 1812690, at
*5, 2020 U.S. Dist. LEXIS 62319, at *12 (S.D.N.Y. Apr. 8, 2020) (“[A] plaintiff who merely
asserts she has suffered discrete acts of past discrimination and retaliation by [a] defendant has
not demonstrated an ongoing constitutional violation.” (citation and internal quotation marks
omitted)). However, because the parties have not addressed this issue, the Court declines to say
as a matter of law that the proposed request for reinstatement does not fall within the Ex Parte
Young exception to the Eleventh Amendment’s bar and is futile. Plaintiff may therefore amend
his complaint to assert claims against the individual Defendants in their official capacities and to
seek reinstatement.
2.

Parkmond

The Court dismissed Plaintiff’s First Amendment claim against Defendant Parkmond for
failure to allege her personal involvement. (Dkt. No. 26, at 34–35 (noting that the complaint’s
sole allegation relating to Parkmond was that, in mid-2019 and as a result of Plaintiff’s
“continued opposition to the MWAP policy,” she “ordered nurses to withhold assistance from
Dr. Salvana for several patients”); see Dkt. No. 1, ¶ 123). Plaintiff now seeks leave to add factual
allegations detailing Parkmond’s personal involvement “in the retaliatory actions taken against”
him. (Dkt. No. 31, at 2). Specifically, the proposed amended complaint alleges that Parkmond
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“began to develop animosity” toward Plaintiff after his “complaint to Defendant Dinello about
Defendant Henderson’s decision to cancel his prescribed treatment to his patients.” (Dkt. No. 312, ¶ 130). Parkmond “allowed nurses that she supervised to act in an insubordinate manner
toward Dr. Salvana, which included treating him with disrespect and refusing to assist him with
patient care.” (Id. ¶ 131). The proposed amended complaint further alleges that Parkmond, “with
the knowledge and consent of Defendant Henderson, prohibited nurses from assisting Dr.
Salvana on the treatment of a hemophiliac patient.” (Id. ¶¶ 133, 136). Defendants argue that
Plaintiff’s proposed amendments with regard to Parkmond are insufficient to plausibly allege her
personal involvement because (1) they are conclusory, (2) failure to properly supervise
subordinates is insufficient to plead personal involvement as a matter of law, and (3) any actions
Parkmond took to enforce the MWAP policy are insufficient to plead personal involvement
because enforcement of the policy does not constitute an adverse action. (Dkt. No. 36, at 14). 5
The Court concludes that Plaintiff’s new allegations with respect to Parkmond are
sufficient to plausibly allege her personal involvement in the alleged violation of his First
Amendment rights. Taken together, the allegations are not impermissibly conclusory, and they
give an indication of how Parkmond became aware of Plaintiff’s alleged protected speech. (Cf.
Dkt. No. 26, at 34 (noting that the complaint did not allege “how Parkmond became ‘aware’ of
[Plaintiff’s] opposition to the MWAP policy”)). Second, the proposed amendments allege more
than simply failure to properly supervise subordinates, but rather that Parkmond affirmatively
acted in allowing her subordinates to behave insubordinately toward Plaintiff and “prohibit[ing]”
them from assisting Plaintiff with patient treatment. These allegations are sufficient to plausibly
plead Parkmond’s personal involvement in the alleged constructive discharge and creation of

5

Plaintiff does not offer any legal analysis of the sufficiency of the proposed amendments.

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intolerable working conditions, and do not seek to hold Parkmond liable solely by virtue of her
supervisory position. Cf. Zielinski v. Annucci, 547 F. Supp. 3d 227, 239 (N.D.N.Y. 2021) (noting
that inferring the personal involvement of a defendant by virtue of his supervisory position is
“precisely the kind of inference about supervisory officials held impermissible” in Tangreti v.
Bachmann, 983 F.3d 609 (2d Cir. 2020)). Finally, the allegations regarding Parkmond concern
the treatment of a hemophiliac patient; there is nothing to suggest that the treatment of this
patient involved mere enforcement of the MWAP policy.
Accordingly, the Court grants Plaintiff’s motion for leave to amend as it relates to
Parkmond.
3.

Remaining Proposed Amendments

The remaining proposed amendments, which Defendants do not address, consist of
additional factual allegations which Plaintiff asserts remedy “concerns raised by the Court” in
relation to Plaintiff’s First Amendment claim. (Dkt. No. 31, at 2; see generally Dkt. No. 31-2).
Because the proposed amendments are simply additional factual allegations relating to the
surviving First Amendment claim, the Court grants Plaintiff’s motion for leave to amend.
V.

CONCLUSION
For these reasons, it is hereby
ORDERED that Plaintiff’s motion for reconsideration (Dkt. No. 33) is DENIED; and it

is further
ORDERED that Plaintiff’s motion for leave to file an amended complaint (Dkt. No. 31)
is DENIED to the extent it seeks to assert any claim against DOCCS; and it is further
ORDERED that Plaintiff’s motion for leave to file an amended complaint is otherwise
GRANTED; and it is further

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ORDERED that Plaintiff is directed to file the proposed amended complaint, in
conformance with the above, by November 28, 2022.
IT IS SO ORDERED.
Dated: November 18, 2022
Syracuse, New York

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