Rodriguez v. Griffin et al

Filing 65

MEMORANDUM-DECISION AND ORDER: ORDERED that Defendants' motion to dismiss (Dkt. No. 53 ) is GRANTED in part and DENIED in part. ORDERED that Defendants DOCCS, LaClair, Fischer, and Griffin be terminated as parties. ORDERED that Defendant G usman be terminated as a party unless Plaintiff amends the complaint as to Plaintiff's medical indifference claim against Defendant Gusman's within THIRTY (30) DAYS. Signed by U.S. District Judge Mae A. D'Agostino on 3/15/18. (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JOSE RODRIGUEZ,

Plaintiff,
vs.

9:15-cv-610
(MAD/TWD)

THOMAS GRIFFIN, Superintendent and/or Chief
Executive Officer, Eastern Correctional Facility, DR.
MIKHAIL A. GUSMAN, Medical-Director; Eastern
Correctional Facility, formerly known as Dr. Guzman,
formerly known as Dr. Gusman; JOHN DOE, Dr.,
Health Care Provide; Eastern Correctional Facility;
NANCY ANTHONY, Registered Nurse; Eastern
Correctional Facility, formerly known as Ms. Anthony,
MS. ANANDOLA, Registered Nurse, Eastern
Correctional Facility, formerly known as Ms. Anndola,
Nurse, formerly known as Doctor Anandolas, JANE DOE,
Registered Nurse; Eastern Correctional Facility,
JOHN/JANE DOE, Nurse Administrator of Medical
Services, Eastern Correctional Facility, NEW YORK
STATE DEPARTMENT OF CORRECTIONS AND
COMMUNITY SUPERVISION, ANTHONY J.
ANNUCCI, BRIAN FISCHE, JEFFREY MCKOY,
DARWIN LACLAIR, JOHN/JANE DOE, Doccs
Administrator, JOHN/JANE DOE, Prison Administrator,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

PAUL, WEISS LAW FIRM - NEW
YORK OFFICE
1285 Avenue of the Americas
New York, New York 10019-6064
Attorneys for Plaintiff

KAREN R. KING, ESQ.
ERIN J. MORGAN, ESQ.
JOSEPH M. DELICH, ESQ.

OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

MATTHEW P. REED, AAG
NICOLE E. HAIMSON, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On May 1, 2017, Plaintiff Jose Rodriguez ("Plaintiff") submitted his Second Amended
Complaint against Defendants New York State Department of Corrections and Community
Supervision ("DOCCS"), Anthony J. Annucci, Brian Fischer, Jeffrey McKoy, Thomas Griffin ,
Darwin LaClair, Doctor Mikhail Gusman, Nancy Anthony, Ms. Anandola, DOCCS Administrator
John/Jane Doe, Prison Administrator John/Jane Doe, Dr. John Doe, Nurse Jane Doe, and Nurse
Administrator John/Jane Doe (collectively, "Defendants"). See Dkt. No. 34. The Second
Amended Complaint alleges three causes of actions under 42 U.S.C. § 1983 against Defendants.
First, Plaintiff alleges that Defendants DOCCS, Annucci, Fischer, Griffin, Gusman, Anthony,
Anandola, Dr. Doe, Nurse Doe, and Nurse Administrator Doe were deliberately indifferent in
providing Plaintiff medical care and as a result he suffered a cerebral stroke. See id. at ¶ 1.
Second, Plaintiff claims that Defendants DOCCS, Annucci, and DOCCS Administrator Doe
transferred Plaintiff to a less desirable prison in retaliation for asserting his medical indifference
claim. See id. at ¶ 4. Third, Plaintiff claims that Defendants DOCCS, Annucci, McKoy, LaClair,
and Prison Administrator Doe have denied him access to the courts by preventing him from
communicating with his counsel. See id. at ¶ 5.
On July 3, 2017, Defendants filed a partial motion to dismiss. See Dkt. No. 53. Currently
before the Court is Plaintiff's Second Amended Complaint and Defendants' motion to dismiss.
For the following reasons, the motion is granted in part and denied in part.
II. BACKGROUND

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Plaintiff Jose Rodriguez ("Plaintiff") is a prisoner in the custody of DOCCS. See Dkt. No.
34 at ¶ 1. From 2007 to 2013, Defendant Fischer was the Acting Commissioner of DOCCS. See
id. at ¶ 13. Since 2013, the role has been filled by Defendant Annucci. See id. at ¶ 12.
In 2011, while Plaintiff was incarcerated at Eastern Correctional Facility ("Eastern C.F."),
he began suffering from a rapid heart rate and irregular breathing. See id. at ¶ 24. These
"symptoms indicated a substantial risk of heart attack or stroke." Id. Plaintiff repeatedly
complained about these symptoms to medical staff at Eastern C.F. See id. at ¶ 25.
The medical staff at Eastern C.F. dismissed his symptoms and refused to provide Plaintiff
with an official interpreter, even though he speaks limited English. See id. at ¶¶ 27-28. In the
course of treating Plaintiff, the medical staff did not consult with Plaintiff's prior physicians; order
a computed tomography scan, an echocardiogram, or a magnetic resonance imaging scan; provide
Plaintiff with a heart monitor; or prescribe Plaintiff even the most basic medication. See id. at ¶
26. One unnamed Defendant, identified as Dr. Doe, suggested that Plaintiff engage in meditation.
See id. at ¶ 27.
Defendant Gusman was the Medical Director of Health Services of Eastern C.F. and
Defendant Griffin is the Superintendent of Eastern C.F. See id. at ¶¶ 15, 17. Defendants Anthony
and Annadola were nurses at Eastern C.F. who are alleged to have provided Plaintiff with medical
care. See id. at ¶ 18.
"On February 16, 2012, Plaintiff suffered a cerebral stroke and was rushed from Eastern
C.F. to Albany Medical Center." Id. at ¶ 29. Plaintiff was incapacitated for several months
following the stroke. See id. at ¶ 31. Around March 1, 2012, Plaintiff was transfered from
Albany Medical Center to the regional medical unit at Coxsackie for rehabilitation and medical
treatment. See id. at ¶ 30. While rehabilitation helped Plaintiff recover somewhat, he has not
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been able to fully recover his communication and motor-skills. See id. at ¶¶ 31-32. Plaintiff is
permanently paralyzed on his left side and "suffers from slurred speech, blurred vision, dizziness,
and chronic headaches as a result of the stroke." Id. at ¶ 32. After ten months at Coxsackie,
Plaintiff was transferred to Shawangunk Correctional Facility ("Shawangunk C.F."). See id. at ¶
30.
On August 20, 2013, Plaintiff filed a grievance with the Inmate Grievance Resolution
Committee ("IGRC") at Eastern C.F. alleging improper medical treatment. See id. at ¶ 33. This
grievance was investigated by a nurse administrator who submitted a report on September 10,
2013. See id. at ¶ 34. The IGRC concluded that Eastern C.F.'s medical personnel demonstrated
deliberate indifference to Plaintiff's serious medical condition. See id. at ¶ 35. This finding was
sent to Superintendent Joseph T. Smith who denied the grievance on September 30, 2016, stating
that "there is nothing to support negligence on the part of Health Services staff." Id. at ¶ 36.
Plaintiff appealed his claim to the Central Office Review Committee ("CORC"). See id. at ¶ 37.
On April 16, 2014, CORC upheld Superintendent Smith's decision. See id.
On May 19, 2015, Plaintiff initiated this lawsuit pro se, pursuant to 42 U.S.C. § 1983,
alleging that his constitutional rights were violated when he was denied basic medical care. See
id. at ¶ 39. On July 22, 2015, this Court found the claim was time-barred, but afforded Plaintiff
the opportunity to amend his complaint. See id. at ¶ 40. Plaintiff submitted, and this Court
accepted, the amended complaint on September 22, 2015. See id. After the Court dismissed the
amended complaint, Plaintiff filed a notice of appeal, and on April 12, 2016, the Second Circuit
appointed pro bono counsel ("Counsel") for Plaintiff. See id. at ¶ 41.
While working on the appeal, Plaintiff and Counsel met three times at Shawangunk C.F.
during May and June 2016. See id. at ¶ 43. Shawangunk C.F. was approximately 80 miles
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Counsel's office in Manhattan. See id. Plaintiff also repeatedly communicated with Counsel via
telephone without any limits on the frequency or length of the calls. See id. Plaintiff alleges that
at least one of Shawangunk's C.F. officials was aware of the lawsuit. See id. at ¶ 45. According
to the Second Amended Complaint, a guard told Plaintiff that he knew that Plaintiff "wanted to
get money from the State" soon after the Second Circuit appointed him with Counsel. Id.
On July 5, 2016, one week prior to the Second Circuit's deadline for Plaintiff's opening
brief, DOCCS suddenly transferred Plaintiff from Shawangunk C.F. to Franklin Correctional
Facility ("Franklin C.F."), located over 340 miles away from his family and Counsel. See id. at ¶¶
44, 46. Defendant LaClair is the Superintendent of Franklin C.F.. See id. at ¶ 16. The Second
Amended Complaint alleges that there was no legitimate reason to initiate the transfer. See id. at
¶ 46. While at Shawangunk C.F., Plaintiff "had an exemplary disciplinary record: he had satisfied
all of his program requirements and has not had a single disciplinary ticket in over two years." Id.
His record was so good that "[h]is classification was lowered from maximum to medium." Id.
As a result of the transfer to Franklin C.F., Plaintiff began having difficulties
communicating with Counsel. Franklin C.F. is not easily accessible from New York City—"the
only flights that service the area from New York City require the traveler to connect through
Boston and fly to an airport that is still a 50 minute drive from Franklin." Id. at ¶ 44. This made
it difficult for Plaintiff to meet with his legal counsel in person. See id. Not only were in person
meetings more difficult at Franklin C.F., but as Plaintiff and Counsel discovered, Franklin C.F.
strictly enforces DOCCS Directive 4423 ("Directive 4423"), a policy approved by Defendant
McKoy, the Deputy Commissioner of Program Services. See id. at ¶¶ 14, 50. Under Directive
4423, an inmate is restricted to one thirty-minute call with counsel every thirty days. See id. at ¶
50. Plaintiff alleges that other correctional facilities do not enforce Directive 4423. See id. at ¶
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51. Further, "[w]ritten communications are difficult because of [P]laintiff's language barrier and
physical limitations. Discussions with counsel must therefore be conducted primarily by
telephone." Id. at ¶ 49.
On July 13, 2016, Counsel attempted to contact Plaintiff and DOCCS refused to connect
the call, stating that Plaintiff "would not be eligible to speak to his lawyers by phone until August
15, 2016." Id. at ¶ 50. Over the following nine months, Plaintiff was limited to one thirty-minute
phone call with Counsel every thirty days. See id. Repeatedly, DOCCS would deny permission
to extend the call duration and on at least one occasion, DOCCS terminated the call before the
thirty minutes had elapsed. See id. at ¶¶ 53, 60.
Plaintiff initiated a formal complaint on October 11, 2016. See id. at ¶ 54. He "requested
to be transferred to a facility close to home' and 'to [be able to] to consult with [my] attorney on a
weekly basis." Id. (quotation omitted). On October 31, Plaintiff met with Offender
Rehabilitation Counselor David Jacobs ("ORC Jacobs") seeking an explanation for why he could
not be transferred to a facility closer to home. See id. at ¶ 55. ORC Jacobs explained that there
was simply "no room anywhere less remote." Id.
On November 9, 2016, Plaintiff filed a second administrative grievance requesting the
same relief. See id. at ¶ 56. The following day, Plaintiff submitted a complaint in writing to three
DOCCS administrators, one of whom was Defendant McKoy. See id. at ¶ 57. In response to this
second grievance, Plaintiff "was advised that all administrative remedies [were] exhausted on this
issue and that Albany (Central Office) is stating no room at any facility for him." See id. at ¶ 58
(quotation omitted).
On December 22, 2016, the Second Circuit vacated this Court's decision and remanded for
further proceedings. See Dkt. No. 22. On March 6, 2017, Plaintiff filed a letter motion
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requesting leave to file a second amended complaint. See Dkt. No. 28. On March 10, 2017, this
Court granted the letter motion. See Dkt. No. 29.
On May 1, 2017, Plaintiff submitted the Second Amended Complaint. See id. In addition
to the medical indifference claim from the original complaint, Plaintiff asserted two new causes of
action based on violations of the First Amendment; DOCCS' decision to transfer him was in
retaliation for his lawsuit, and Directive 4423 effectively deprives Plaintiff of the ability to
communicate with Counsel, which denies him proper access to the courts. See id. at ¶¶ 69-80.
III. DISCUSSION
A.

Standard of Review
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111-12 (2d Cir. 2007). In considering the legal sufficiency, a court must
accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the
pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)
(citation omitted). This presumption of truth, however, does not extend to legal conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although a court's review of a
motion to dismiss is generally limited to the facts presented in the pleading, the court may
consider documents that are "integral" to that pleading, even if they are neither physically
attached to, nor incorporated by reference into, the pleading. See Mangiafico v. Blumenthal, 471
F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d
Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is
7

entitled to relief.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
above the speculative level," see id. at 555 (citation omitted), and present claims that are
"plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."
Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it 'stops short of the line between possibility and
plausibility of 'entitlement to relief.''" Id. (quoting Twombly, 550 U.S. at 557). Ultimately, "when
the allegations in a complaint, however true, could not raise a claim of entitlement to relief,"
Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims across the line from
conceivable to plausible, the[] complaint must be dismissed[,]" id. at 570.
B.

First Amendment Access to the Courts
A prison's restrictions on an inmate's telephone use may violate the inmate's First

Amendment right to access the courts. See Kwok Sze v. Annucci, No. 13-CV-534, 2017 WL
913646, *2 (N.D.N.Y. Mar. 7, 2017). To state a claim that phone restrictions impermissibly
impede an inmate's access to the courts, the complaint must not only allege that the prison has
placed restrictions on telephone use, but also that the inmate has no alternative method of
communicating with counsel. See id. (citations omitted). "[A] prisoner's access to counsel via
telephone may be restricted so long as the prisoner has some other avenue to communicate, even
if less than ideal." Ahlers v. Townsend, No. 12-CV-0575, 2014 WL 4365277, *5 (N.D.N.Y. Aug.
28, 2014).
Defendants argue that Plaintiff's claim fails because he still has access to communicate
with Counsel through in-person meetings and mail correspondence. See Dkt. No. 53-1 at 11.
8

Plaintiff argues that the distance between Counsel and Franklin C.F., combined with Plaintiff's
physical disabilities and language difficulties are significant barriers to alternative avenues of
communication. See Dkt. No. 56 at 17.
Although multiple federal district courts sitting in New York State have upheld prisons'
restrictive telephone policies, all of these decisions noted that the inmates were able to meet with
their counsel in person or engage in written correspondence. See, e.g., Kwok Sze, 2017 WL
913646, at *2 ("Here, the facts demonstrate that Sze had and used alternative means to
communicate with his attorneys"); Ahlers, 2014 WL 4365277, at *5 ("Plaintiff could have met
with his attorney via mail or in person"); Martinez v. Healey, No. 14-CV-302, 2014 WL 5090056,
*3 (S.D.N.Y. Oct. 10, 2014) (granting the defendant's motion to dismiss where "there is no
suggestion in the pleadings that any employee precluded Plaintiff from communicating with
counsel, whether in person or by other alternate means"); Harrison v. SecurusTech.Net, No. 13CV-4496, 2014 WL 737830, *4 (E.D.N.Y. Feb. 24, 2014) ("Notably, Plaintiff does not allege that
he is unable to communicate through the mail or during visitation").
In Lewis v. Casey, 518 U.S. 343, 356 (1996), the Supreme Court determined that
individualized ability to access courts is the touchstone of the analysis. The plaintiffs in Lewis
were a group of prisoners who claimed that they were provided with insufficient legal resources
to sufficiently litigate their claims. See id. at 346. The Supreme Court concluded that even where
a prison provides law libraries and assistance adequate for most inmates, "the State has failed to
furnish adequate" resources where an inmate is unable to effectively use them due to illiteracy or
language barriers. Id. at 356. The decision stated that the constitutional right to access the courts
was not a guarantee of a "particular methodology but rather the conferral of a capability—the
capability of bringing contemplated challenges to sentences or conditions of confinement before
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the courts." Id. The gravamen of the analysis is not whether most inmates could access the
courts with the resources provided by the prison, but instead whether the specific inmate in
question is actually able to utilize them. See id. at 356-57 ("[I]t is that capability, rather than the
capability of turning pages in a law library that is the touchstone"). Thus, while "the State is not
obligated to provide the best manner of access," Pino v. Dalsheim, 558 F. Supp. 673, 675
(S.D.N.Y. 1983), a system that allows access to counsel in theory but denies it in practice is
insufficient. See Lewis, 518 U.S. at 356-57.
Here, Plaintiff is partially paralyzed, suffers from blurry vision as a result of the stroke,
and is not a native English speaker. According to the Second Amended Complaint, these
combine to make legal correspondence by mail particularly difficult. Further, as the prison is
located 380 miles away from Counsel's office in Manhattan, visits in person are functionally
impractical. Given that the focus of the access to the courts analysis is on whether Plaintiff was
actually able to communicate with Counsel, the barriers alleged in the Second Amended
Complaint paint a plausible portrait of an inmate who is unable to communicate with his attorney.
Therefore, Defendants' motion to dismiss the second claim is denied.
C.

DOCCS and the Eleventh Amendment
The Eleventh Amendment to the United States Constitution bars federal courts from

exercising subject matter jurisdiction over claims against a state or one of its agencies absent their
consent to such a suit or an express statutory waiver of immunity. See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984). "This jurisdictional bar applies regardless of
the nature of the relief sought." Id. at 100. Congress did not abrogate the Eleventh Amendment
immunity granted to the states when it enacted 42 U.S.C. § 1983 because it is well settled that

10

states are not "persons" under section 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58,
71 (1989) (citation omitted); see also Quern v. Jordan, 440 U.S. 332, 240-41 (1979).
Defendants move to dismiss all claims against DOCCS because DOCCS is a New York
State agency. Plaintiff argues that he is seeking prospective relief, which is permissible under Ex
parte Young, 209 U.S. 123 (1908). However, as the Ex parte Young exception only applies to
state officials acting in their official capacity, not to states or their agencies, it does not apply to
DOCCS. Therefore, Defendants' motion to dismiss all claims against DOCCS is granted.
D.

Personal Involvement of Individual Defendants
"It is well settled in [the Second Circuit] that personal involvement of defendants in

alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Colon
v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994)). Therefore, a supervisory official may not be held liable solely on the ground that they
held a position of authority. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) (citation
omitted).
Personal involvement is a question of fact and must be satisfied as to each individual
defendant. See Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986) (citation omitted). "A
plaintiff asserting a § 1983 claim against a supervisory official in his individual capacity must
allege that the supervisor was personally involved in the alleged constitutional deprivation."
Rivera v. Fischer, 655 F. Supp. 2d 235, 237 (W.D.N.Y. 2009) (citations omitted). Supervisory
personnel may satisfy the personal involvement requirement if:
(1) The defendant participated directly in the alleged constitutional
violation; (2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong; (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom; (4) the defendant was grossly negligent in supervising
11

subordinates who committed the wrongful acts; or (5) the defendant
exhibited deliberate indifference to the rights of inmates by failing
to act on information indicating that unconstitutional acts were
occurring.
Colon, 58 F.3d at 873.
1. Medical Indifference
Defendants have moved to dismiss Plaintiff's medical indifference claim against
Defendants Annucci, Fischer, Griffin, and Gusman on the grounds that Plaintiff failed to
sufficiently allege personal involvement. See Dkt. No. 53-1 at 9.
i. Defendants Annucci, Fischer, and Griffin
Plaintiff argues that Defendants Annucci, Fischer, and Griffin were responsible for the
policies and practices at Eastern C.F. that resulted in the medical indifference. See Dkt. No. 56 at
15-16. According to Plaintiff, these three defendants, in their roles as the Acting Commissioner
of DOCCS and Superintendent of Eastern C.F., were personally involved with the medical
indifference because they set the policies that led to the medical indifference. See id. However,
the Second Amended Complaint does not allege the existence of any specific policies or customs
that led the medical staff to ignore Plaintiff's symptoms or refuse to provide him with a translator.
The only policies or customs related to medical indifference mentioned in the Second Amended
Complaint are legal conclusions and thus insufficient to establish personal responsibility. See
Dkt. No. 34 at ¶ 64.
Plaintiff also argues that Defendants Annucci and Fischer had actual or constructive
knowledge of what happened to Plaintiff because they were the Acting Commissioners of
DOCCS and had final authority in denying Plaintiff's initial administrative grievance. See Dkt.
No. 56 at 16.

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Imputing personal involvement requires more than just notice. Merely alleging notice via
a complaint through a prison's formal grievance process is not in itself sufficient to establish
personal involvement. See McKenna v. Wright, 386 F.3d 432, 438 (2d Cir. 2004). "The
grievance must [have] allege[d] an 'ongoing' constitutional violation that the supervisory official
who review[ed] the grievance [could] remedy directly." Vega v. Artus, 610 F. Supp. 2d 185, 198
(N.D.N.Y. 2009); see also Harnett v. Barr, 538 F. Supp. 2d 511, 524 (N.D.N.Y. 2008) ("If the
official is confronted with a violation that has already occurred and is not ongoing, then the
official will not be found personally responsible for failing to 'remedy' a violation").
Here, regardless of whether Defendants Annucci and Fischer had notice, it is clear that the
violation was not ongoing when Plaintiff filed his administrative grievance. Plaintiff initiated the
grievance process after he had left Eastern C.F. Thus, by the time that Defendants Annucci and
Fischer could have had notice, Plaintiff was no longer subject to Eastern's medical care.
Therefore, Defendants' motion to dismiss Plaintiff's medical indifference claim against
Defendants Annucci, Griffin, and Fischer is granted.
ii. Doctor Mikhail Gusman
Plaintiff argues that Defendant Gusman participated directly in the medical indifference at
Eastern C.F. because he was a member of the medical staff who may have treated Plaintiff and, as
medical director of Eastern C.F., he could have been grossly negligent in supervising his
subordinates. See Dkt. No. 56 at 13-14. However, the Second Amended Complaint alleges no
facts suggesting that Defendant Gusman was involved in directly providing Plaintiff medical care
or that his management of Eastern C.F.'s medical staff was grossly negligent. Other than naming
him as a defendant, Defendant Gusman is only mentioned in the Second Amended Complaint to
identify him as the Medical Director of Health Services at Eastern C.F. Therefore, Defendants'
13

motion to dismiss Plaintiff's medical indifference claim against Defendant Gusman is granted.
However, given the seriousness of Plaintiff's harm, Defendant Gusman's involvement in
supervising the medical staff at Eastern C.F., and the fact that Plaintiff's communication with
Counsel has been limited, the Court grants Plaintiff 30 days to amend his complaint with regards
to his medical indifference claim against Dr. Gusman.
2. First Amendment Access to the Courts
Defendants also have moved to dismiss the First Amendment access to the courts claim
against Defendants Annucci and LaClair as the Second Amended Complaint fails to allege that
they were personally involved in depriving Plaintiff of access to the courts. See Dkt. No. 53-1 at
10.
i. Defendant Annucci
Plaintiff argues that as the Acting Director of DOCCS, Defendant Annucci was
responsible for Directive 4423. See Dkt. No. 56 at 17. However, Plaintiff has failed to allege
sufficient facts to establish Defendant Annucci's personal involvement in denying Plaintiff access
to the courts. For a supervisor to be liable for a policy or custom within their control, "it is not
sufficient that such a policy or practice continued to exist during defendant's tenure; defendant
must have known of it as well." K & A Radiologic Tech. Services, Inc. v. Comm'r of the Dep't of
Health of the State of N.Y., 189 F.3d 273, 278 (2d Cir. 1999).
Here, Plaintiff points to Directive 4423 as a specific policy that is allegedly depriving
Plaintiff of his constitutional rights. However, the Second Amended Complaint states that Policy
4423 was promulgated by the Deputy Commissioner of Program Services, an office below
Defendant Annucci's. Further, Plaintiff acknowledges that Policy 4423 was not enforced
uniformly across DOCCS facilities. These suggest that Defendant Annucci had no reason to be
14

aware of the policy's creation or existence. As the Second Amended Complaint makes no specific
allegations regarding Defendant Annucci's involvement with Policy 4423, Plaintiff has failed to
plausibly allege that Defendant Annucci was actually aware of the policy. Therefore, Defendants'
motion to dismiss Plaintiff's access to the courts claim against Defendant Annucci is granted.
ii. Darwin LaClair
Plaintiff argues that as superintendent of Franklin C.F., Defendant LaClair is responsible
for the facility. According to the Second Amended Complaint, Franklin C.F. strictly enforces
Directive 4423, which is out of step with the standard practices of other prisons in New York
State. However, while Defendant LaClair may be in charge of the facility, the Second Amended
Complaint does not allege that Defendant LaClair was involved with or aware of Directive 4423
at Franklin C.F. Further, while the Second Amended Complaint alleges that Plaintiff notified
multiple individuals who worked for DOCCS and Franklin C.F. about his difficulties
communicating with Counsel, the Second Amended Complaint does not allege that his complaints
about his inability to communicate with Counsel were ever sent to or received by Defendant
LaClair. Therefore, the Second Amended Complaint does not plausibly allege that Defendant
LaClair was personally involved with Franklin C.F.'s implementation of Directive 4423 and
Defendants' motion to dismiss Plaintiff's access to the courts claim against Defendant LaClair is
granted.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby

15

ORDERS that Defendants' motion to dismiss (Dkt. No. 53) is GRANTED in part and
DENIED in part;1 and the Court further
ORDERS that Defendants DOCCS, LaClair, Fischer, and Griffin be terminated as parties;
and the Court further
ORDERS that Defendant Gusman be terminated as a party unless Plaintiff amends the
complaint as to Plaintiff's medical indifference claim against Defendant Gusman's within
THIRTY (30) DAYS; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.

Dated: March 15, 2018
Albany, New York

Defendants' motion is granted for all claims against Defendants DOCCS, Fischer,
Griffin, Gusman, and LaClair. Defendants' motion to dismiss Plaintiff's medical indifference and
access to the courts claims against Defendant Annucci is also granted. Defendants' motion to
dismiss Plaintiff's entire access to the courts claim is denied.
1

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