Smith v. New York State et al

Filing 31

DECISION AND ORDER: ORDERED, that Plaintiff's Motion (Dkt. No. #13 ) is GRANTED in part and DENIED in part. ORDERED, that Plaintiffs Motion is GRANTED with respect to his negligence claim against defendants Martuscello, Smith, Miller, Baldwin, and Rizzi, which SURVIVES initial review and requires a response from these defendants. The Court construes the Complaint to plead negligence as an alternative to Plaintiff's First Amendment retaliation and Eighth Amendment claims. Plaintiff's Motion is otherwise DENIED. ORDERED, that the Clerk of the Court shall provide Plaintiff with copies of the unpublished decisions cited in this Decision and Order. Signed by Senior Judge Lawrence E. Kahn on 1/10/18. (Attachments: #1 Unpublished Decisions Cited) (served on plaintiff by regular mail)(alh, )

Arroyo v. City of New York, Not Reported in F.Supp.2d (2003)
2003 WL 22211500

Criminal law enforcement; prisons
Inmate, in failing to renew his grievance or
otherwise seek to use an extensive inmate
grievance resolution program in place at
correctional facility, did not exhaust his
administrative remedies, as required by the
Prison Litigation Reform Act (PLRA), thus
barring his § 1983 suit alleging cruel and
unusual punishment in connection with an
eight-month delay of allegedly necessary
surgery for an inguinal hernia; even if he
initially thought that he had been promised
prompt surgery after his informal grievance
review, shortly thereafter he obviously knew
that surgery had not been performed,
or even scheduled, and he presented no
explanation as to why he did not at least
inquire as to why surgery that he allegedly
thought he had been promised had not been
forthcoming. 42 U.S.C.A. § 1983; Civil Rights
of Institutionalized Persons Act, § 7(a), as
amended, 42 U.S.C.A. § 1997e(a).

KeyCite Yellow Flag - Negative Treatment
Distinguished by Kucharczyk v. Westchester County, S.D.N.Y., March

26, 2015

2003 WL 22211500
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Robert ARROYO, Plaintiff,
v.
THE CITY OF NEW YORK, N.Y.C. Department
of Correction, Hospital Administrator, C–73, St.
Barnabas Hospital Administrator, Dr. “John”
Mohammad, First name being fictitious, real
name being unknown, Dr. Harjinger Bhatti, Dr.
Jude Aririguzo, Dr. “John” August, First name
being fictitious, real name being unknown, Dr.
Jean Valcourt, Dr. “John Doe”, Full name being
fictitious, real name being unknown, Dr. Sung Kim,
Dr. Ye Hum Kim, the New York City Health and
Hospitals Corporation, St. Barnabus Hospital, St.
Barnabus Correctional Health Systems, Inc., the
New York City Correctional Health Services, the
New York City Department of Health, Defendants.
No. 99 Civ.1458(JSM).
|
Sept. 25, 2003.
Synopsis
Inmate brought a § 1983 suit, alleging that violation
of his Eighth Amendment right to be free from cruel
and unusual punishment in connection with an eightmonth delay of allegedly necessary surgery for an inguinal
hernia. On a defense motion for summary judgment, the
District Court, Martin, J., held that: (1) inmate failed to
exhaust his administrative remedies, and (2) in any event,
the alleged delay did not amount to cruel and unusual
punishment.

6 Cases that cite this headnote
[2]

Prisons
Particular Conditions and Treatments
Sentencing and Punishment
Medical care and treatment
Alleged eight-month delay of allegedly
necessary surgery for an inmate's inguinal
hernia did not amount to cruel and unusual
punishment under the Eighth Amendment;
the hernia was not a serious enough condition
to satisfy the objective prong of the test,
and as to the subjective prong, all that
the inmate alleged was negligence. U.S.C.A.
Const. Amend. 8.
9 Cases that cite this headnote

Motion granted.

OPINION & ORDER

West Headnotes (2)
MARTIN, J.
[1]

Civil Rights

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

1

Arroyo v. City of New York, Not Reported in F.Supp.2d (2003)
2003 WL 22211500

*1 Plaintiff Robert Arroyo brings this action pursuant
to 42 U.S.C. § 1983, alleging that Defendants violated
his Eighth Amendment right to be free from cruel
and unusual punishments by delaying for eight months
allegedly necessary surgery for an inguinal hernia.
Defendants have moved for summary judgment on
various grounds, including Plaintiff's failure to exhaust
administrative remedies, the failure to proffer evidence
of deliberate indifference to Plaintiff's serious medical
needs, the lack of personal involvement by the individual
Defendants, qualified immunity, the failure to plead an
unconstitutional pattern or practice by the municipal
Defendants, the fact that the Department of Corrections
and Correctional Health Services are agencies that may
not be sued, and, to the extent that Plaintiff implies that
he may have claims under state law, the failure to file a
notice of claim.

Failure to Exhaust Administrative Remedies
[1] The Prison Litigation Reform Act, 42 U.S.C. §
1997e(a) provides that a prisoner may not bring an action
pursuant to 42 U.S.C. § 1983 or any other Federal law until
he has exhausted any available administrative remedies.
In this case, Plaintiff failed to pursue his administrative
remedies, and for that reason alone, this action must be
dismissed.
In October 1998, Plaintiff filed a grievance stating that he
had been denied surgery for a hernia that caused him great
pain and suffering. His complaint was heard in a first level
informal proceeding, in which it was proposed that it be
resolved as follows:
“On 10/26/98 the IGRC contacted
the Clinic Manger. Grievant will be
called down to have an examination.
Action requested is accepted.”
Plaintiff accepted this resolution, and was further
examined in the clinic at Riker's Island. When that
examination resulted only in further non-surgical
interventions, and he was not scheduled promptly for
surgery, he did not renew his grievance or otherwise seek
to use the extensive five step inmate grievance resolution
program that is in place at Riker's Island. His failure to
do so precludes this action, despite his claim that it would
have been irrational for him to appeal what he perceived
to be a favorable result. Even if Plaintiff though that
he had been promised prompt surgery after his informal

grievance review, shortly thereafter he obviously knew
that surgery had not been performed, or even scheduled.
He presents no explanation as to why he did not at least
inquire as to why surgery that he allegedly thought he had
been promised had not been forthcoming.

Denial of Medical Care
[2] Even if Plaintiff had exhausted his administrative
remedies, he has not sufficiently stated a claim for
violation of the Eighth Amendment. In order to state
a claim for an unconstitutional denial of medical care,
a plaintiff must prove “deliberate indifference” to his
serious medical needs. Estelle v. Gamble, 429 U.S. 97,
104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). The
deliberate indifference standard has both an objective and
a subjective component. First, the alleged condition must
be objectively “sufficiently serious.” Such seriousness has
been defined as “a condition of urgency, one that may
produce death, degeneration, or extreme pain.” Hathaway
v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994), cert. denied,
513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995).
Subjective complaints of pain are not sufficient to satisfy
this standard. Espinal v. Coughlin, 98 Civ. 2579 (RPP),
2002 U.S. Dist. LEXIS 20, *9 (S.D.N.Y. Jan. 2, 2002);
Chatin v. Artuz, No. 95 Civ. 7994(KTD), 1999 U.S. Dist.
LEXIS 11918, *11 (S .D.N.Y. Aug. 4, 1999), aff'd, 2002
U.S.App. LEXIS 86 (2002) (“[Plaintiff's] alleged problems
in his right foot may indeed be very real. His pain is not,
however, of the type contemplated for satisfaction of the
objective standard.” (citing Liscio v. Warren, 901 F.2d
274, 277 (2d Cir.1990)). Second, the Defendant must:
*2 know of and disregard an
excessive risk to inmate health or
safety; the official must both be
aware of facts from which the
inference could be drawn that a
substantial risk of serious harm
exists, and he must also draw the
inference.
Hathaway v. Coughlin, 37 F.3d at 66 (2d Cir.1994)
(quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct.
1970, 1979, 128 L.Ed.2d 811 (1994)).
Charges that amount only to allegations of malpractice,
and mere disagreements with respect to the quality of
medical care do not state an Eighth Amendment claim.
Estelle v. Gamble, 429 U.S. at 105–06, 97 S. Ct at 292

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2

Arroyo v. City of New York, Not Reported in F.Supp.2d (2003)
2003 WL 22211500

(“Thus, a complaint that a physician has been negligent in
diagnosing or treating a medical condition does not state
a valid claim of medical mistreatment under the Eighth
Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a
prisoner.”). See also Chance v. Armstrong, 143 F.3d 698,
703 (2d Cir.1998); Espinal v. Coughlin, 2002 U.S. Dist.
LEXIS 20, *10; Brown v. McElroy, 160 F.Supp.2d 699,
705–06 (S.D.N.Y.2001); Culp v. Koenigsmann, 99 Civ.
9557(AJP), 2000 U.S. Dist. LEXIS 10168, *32 (S.D.N.Y.
July 19, 2000). Accordingly, a delay in treatment does
not violate the Eighth Amendment unless it involves
an act or a failure to act that evinces “a conscious
disregard of a substantial risk of serious harm.” Chance
v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998)); Espinal
v. Coughlin, 2002 U.S. Dist. LEXIS 20, *9 (“The Second
Circuit has ‘reserved such a classification for cases in
which, for example, officials deliberately delayed care as a
form of punishment, ignored a ‘life-threatening and fastdegenerating’ condition for three days, or delayed major
surgery for over two years.”).
Application of the deliberate indifference standard to the
facts of this case makes clear that summary judgment must
be granted in favor of the Defendants. First, Plaintiff's
inguinal hernia was not objectively a “serious” enough
condition to satisfy the objective prong of the test. In
Gonzalez v. Greifinger, No. 95 Civ. 7932(RWS), 1997
U.S. Dist LEXIS 18677, *7 (S.D.N.Y. Nov. 22, 1997),
the Court found that an 11 month delay in surgically
repairing the plaintiff's umbilical hernia, followed by
surgery that resulted in complications, failed to satisfy the
constitutional serious medical need standard.
Other courts have found objectively insufficient claims
relating to a toothache, Tyler v. Rapone, 603 F.Supp.
268, 271–72 (E.D.Pa.1985), a broken finger, Rodriguez v.
Joyce, 693 F.Supp. 1250, 1252–53 (D.Me.1988), and pain
in the knee, Espinal v. Coughlin, 2002 U.S. LEXIS 20, *9.
See also Abdul–Akbar v. Dept. of Corrections, 910 F.Supp.
rd

986, 1006 (D.Del.1995), aff'd, 111 F.3d 125 (3 Cir.), cert.
denied, 522 U.S. 852, 118 S.Ct. 144, 139 L.Ed.2d 91 (1997)
(“It is questionable whether a hernia is a ‘serious medical
need.” ’).
In this case, Plaintiff's condition was not “one of urgency
that may produce death, degeneration, or extreme pain,”
and was far less serious than the types of conditions that
have been found to constitute “serious medical needs.”

Plaintiff has not alleged, let alone presented evidence
to show, that his condition was, at any point, “fast
degenerating” or “life threatening,” or that Defendants
delayed necessary medical treatment in order to punish
him.
*3 Secondly, with respect to the subjective prong, all that
Plaintiff has alleged is negligence. There is no evidence
that Plaintiff ever was denied medical treatment. To the
contrary, he testified that he was promptly taken to the
clinic whenever he asked to be, and it is clear that he was
seen in the clinic at Riker's Island more than 30 times
during the eight month period at issue here. 1 Also, there
is ample evidence in the record of attempts to ameliorate
Plaintiff's condition without surgery. The hernia, which
Plaintiff first noticed 1993, and which was repeatedly
diagnosed as a reducible hernia, was reduced at least twice.
He was prescribed pain medication, a scrotal support,
various trusses, ice packs, elevation, and a surgical
consultation was requested. Ultimately, in January 1999,
the hernia was surgically repaired at Kings County
Medical Center. These interventions were consistent with
the diagnosis made and treatment prescribed at Beth Israel
Hospital one month before Plaintiff was incarcerated.
There too he was diagnosed with an “easily reducible RIH
[right inguinal hernia],” and told to purchase a scrotal
support, or truss, for comfort. At that time, he also was
given an appointment for a surgical consultation, which
he did not attend. 2
1

2

In addition to treatment for the hernia, Plaintiff
was treated for a number of other conditions while
incarcerated at Riker's Island. He received medical
attention for drug dependency, mental health issues,
dyspepsia, heartburn, and ingrown toe nails, and
was prescribed eyeglasses at the Riker's Island clinic.
Thus, there is absolutely no evidence his medical
needs were ignored by Defendants.
Plaintiff's alleged urgent need and desire for surgery
is further undercut by his refusal to undergo
prescribed surgery for a left inguinal hernia, which
was diagnosed and scheduled at the time of the
surgical repair of the right inguinal hernia.

Moreover, Plaintiff has not alleged that the hernia became
worse, 3 or that his general condition deteriorated as
a result of the alleged delay in surgery. The evidence
also is that, unlike in Gonzalez v. Greifinger, 1997 U.S.

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

3

Arroyo v. City of New York, Not Reported in F.Supp.2d (2003)
2003 WL 22211500

Dist. LEXIS 18677, the surgery ultimately was performed
successfully and without complications.
3

His allegation is that the hernia was, at all times, the
size of a softball.

Finally, Defendants have presented evidence that
attempting to treat a hernia conservatively prior
to performing surgery constitutes reasonable medical
practice. Plaintiff, on the other hand, did not present any
medical opinion testimony to support his argument that
it was unreasonable to first attempt to treat his hernia
non-surgically, and to resort to surgery only after such
methods had failed. See Culp v. Koenigsmann, 2000 U.S.
Dist. LEXIS 10168, *11. Accordingly, Plaintiff has failed
to meet his burden of proof in opposition to Defendants'
motion for summary judgment. Celotex v. Catrett, 477
U.S. 317, 323–24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265
(1986); Cifarelli v. Village of Babylon, 25 C.C.P.A. 785, 93
F.2d 47, 51 (2d Cir.1996) (“[M]ere conclusory allegations,
speculation or conjecture will not avail a party resisting
summary judgment.”); Goenaga v. March of Dimes Birth
Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995).
It also appears that Plaintiff has not alleged that the
municipal Defendants engaged in a pattern or practice

End of Document

of indifference to prisoners' medical needs, as required
by Monell v. Department of Social Services of the City
of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037–
38, 56 L.Ed.2d 611 (1978); Batista v. Rodriguez, 702 F.2d
393, 397 (2d Cir.1983). Nor has Plaintiff alleged any
personal participation by Dr. Ye Hum Kim. However,
in light of the foregoing, there is no need to address
either these issues or the Defendants' claims of qualified
immunity. Furthermore, having dismissed all of Plaintiff's
federal claims, the Court also will dismiss whatever state
law claims he intended to state pursuant to this Court's
supplemental jurisdiction. See United Mine Workers v.
Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d
218 (1966).

Conclusion
*4 For the foregoing reasons, Defendants' motion for
summary judgment is granted and the Second Amended
Complaint is dismissed.
SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2003 WL 22211500
© 2018 Thomson Reuters. No claim to original U.S. Government Works.

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

4

O'Diah v. Mawhir, Not Reported in F.Supp.2d (2010)
2010 WL 6230937

2010 WL 6230937
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Aror Ark O'DIAH, Plaintiff,
v.
A. MAWHIR, Cayuga Correctional Facility; Michael
Corcoran, Superintendent, Cayuga Correctional
Facility; Scott C. Carlsen, Superintendent, Ulster
Correctional Facility; P. Buttarazzi, Chief Physician,
Cayuga Correctional Facility Inmate Clinic; Jesus
Floresca, Chief Physician, Ulster Correctional
Facility Inmate Clinic; K. Stevenson, Cayuga
Correctional Facility Program Coordinator; Ms.
Daly; Mary Warner, Nurse Administrator, Cayuga
Correctional Facility; and T. Napoli, Defendants.
No. 9:08–CV–322 (TJM)(DRH).
|
Dec. 14, 2010.
Attorneys and Law Firms
Aror Ark O'Diah, Collins, NY, pro se.
Hon. Andrew M Cuomo, Attorney General for the State
of New York, Roger W. Kinsey, Esq., Assistant Attorney
General, of Counsel, Albany, NY, for Defendants.

REPORT–RECOMMENDATION AND ORDER 1
1

This matter was referred to the undersigned for report
and recommendation pursuant to 28 U.S.C. § 636(b)
and N.D.N.Y.L.R. 72.3(c).

following reasons, it is recommended that defendants'
motion be granted in part and denied in part.

I. Background
The facts as alleged in the Second Amended Complaint
are assumed to be true for the purposes of this motion. See
subsection II(A) infra.
O'Diah was previously incarcerated at Ulster Correctional
Facility (“Ulster”), and Cayuga Correctional Facility
(“Cayuga”) among other facilities. Second Am. Compl.
¶ 3. O'Diah alleges that beginning in August 2007,
he was, among other things, denied medical care in
deliberate indifference to his serious medical needs,
retaliated against for filing complaints and grievances,
issued false misbehavior reports, denied due process and
equal protection, and discriminated against on account of
his race and national origin.
On August 8, 2007, defendant K. Stevenson, a
Cayuga program director, acting under the direction of
defendant Michael Corcoran, Cayuga's Superintendent,
told O'Diah that he should participate in the prison's
general equivalency diploma GED program even though
Stevenson and Corcoran knew that O'Diah had already
held a number of advanced degrees. Second Am. Compl. ¶
41. O'Diah alleges that their actions amounted to “reckless
and gross intentional disregard[ ] for [his] academic
credentials.” Id. O'Diah's refusal prompted an unnamed
correctional officer, at the direction of Corcoran and
Stevenson, to issue Tier II and Tier III disciplinary
charges 2 against O'Diah. Id. O'Diah lost his good time
credit and was assaulted by another unnamed correctional
officer. Id. ¶ 42.
2

DAVID R. HOMER, United States Magistrate Judge.
*1 Plaintiff pro se Aror Ark O'Diah (“O'Diah”), an
inmate in the custody of the New York State Department
of Correctional Services (DOCS), commenced this action
against against nine DOCS employees pursuant to 42
U.S.C. §§ 1983 and related federal and state law alleging
violations of his civil rights. Second Am. Compl. (Dkt.
No. 46.) Presently pending is defendants' motion to
dismiss pursuant to Fed.R.Civ.P. 12(b). Dkt. No. 53.
O'Diah opposes the motion. Dkt. No. 56. For the

DOCS regulations provide for three tiers of
disciplinary hearings depending on the seriousness
of the misconduct charged. A Tier II hearing,
or disciplinary hearing, is required whenever
disciplinary penalties not exceeding thirty days
may be imposed. N.Y. Comp.Codes R. & Regs.
tit. 7, §§ 253.7(iii), 270.3(a). A Tier III hearing,
or superintendent's hearing, is required whenever
disciplinary penalties exceeding thirty days may be
imposed. Id.

On September 13, 2007, defendant Jesus Dr. Floresca,
a physician at Ulster, examined O'Diah. Second Am.

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1

O'Diah v. Mawhir, Not Reported in F.Supp.2d (2010)
2010 WL 6230937

Compl. ¶ 43. O'Diah claimed that he had a urinary
tract infection because he experienced intense pain
along his urinary tract. Id. ¶¶ 43–44. Dr. Floresca
prescribed Motrin, which O'Diah refused. Id. ¶ 44. Dr.
Floresca denied O'Diah's request for a urine analysis
and antibiotics. Id. O'Diah then lost control and began
shouting because of the pain. Id. ¶ 45. Dr. Floresca
contacted Ulster's security personnel and told them that
O'Diah was “crazy.” Id. ¶ 46. Dr. Floresca and Ulster
Superintendent Scott Carlsen, also a defendant herein,
took O'Diah to an unnamed Ulster psychiatrist who told
Dr. Floresca and Carlsen that O'Diah was not crazy.
Id. ¶ 48. O'Diah then received a Tier II disciplinary
charge, esd gounf huily, and was sentenced to thirty days
in keeplock. 3 Id. ¶ 50. On September 18, O'Diah was
transferred from Ulster to Cayuga where he remained
in keeplock. Id. ¶ 52. O'Diah appears to allege that
this transfer was in retaliation for some unspecified
conduct. Id. ¶ 88. Defendant Michael Corcoran, Cayuga's
Superintendent, kept O'Diah in keeplock until October 24,
six days beyond his thirty-day sentence. Id. ¶ 53.
3

“Keeplock is a form of disciplinary confinement
segregating an inmate from other inmates and
depriving him of participation in normal prison
activities.” Green v. Bauvi, 46 F.3d 189, 192 (2d
Cir.1995); N.Y. Comp.Codes R. & Regs. tit. 7, §
301.6.

*2 On October 24, 2007, prison officials gave O'Diah
antibiotics to treat a lesion on his urinary tract. Second
Am. compl. ¶ 55. He needed treatment for both gram
negative and gram positive bacteria but the antibiotics
he received were effective against gram negative bacteria
only. Id. ¶ 56. He also claims that defendants then
intentionally and wrongly gave him treatment for
cancer, epilepsy, and tuberculosis with the intention of
poisoning him. Id. That same day, in response to the
bacterial diagnosis, O'Diah appealed his Tiers II and III
disciplinary determinations from September 13. Id. ¶ 59.
Corcoran and Carlsen refused to amend the disciplinary
determinations. Id.
Also on October 24, O'Diah requested special access to use
the law library for an additional ninety days because he
had fallen behind on responding to motions in a matter
pending in the United States District Court for the Eastern
District of New York. Second Am. Compl. ¶ 61. Corcoran
granted a thirty-day extension. Id. ¶ 64. On November
9, O'Diah informed Cayuga correctional officers that he

was no longer in need of the special access. Id. ¶ 65.
On November 11, O'Diah refused an opportunity to use
the library. Id. ¶ 66. The next day, he received a Tier
II disciplinary ticket, which resulted in thirty days of
keeplock. Id. ¶¶ 67, 69. O'Diah alleges that the issuance
of the disciplinary tickets and his medical mistreatment
were in retaliation for his refusal to participate in the GED
program in August. Id. ¶ 68.
O'Diah filed grievances against Corcoran and other
Cayuga officials on February 25 and 26, 2008, because
they had failed to refund money that was unlawfully seized
by defendant Daly, Cayuga's Deputy Superintendent for
Administration, in September 2007. Second Am. Compl.
¶¶ 71–72. Defendant T. Napoli refused to process the
grievances. Id. ¶ 71. Between November 21, 2007, and
March 5, 2008, a number of correctional officers and
prison inmates, led by defendant A. Mawhir, physically
abused O'Diah by beating him and pouring cold water
on him while he was sleeping. Id. ¶¶ 74–75. O'Diah filed
grievances against Corcoran and other Cayuga officials
because they ignored the abuse. Id. ¶ 74.
O'Diah saw defendant Dr. P. Buttarazzi, a physician at
Cayuga, on February 25, 2008, because O'Diah needed
antibiotic ointment for a lesion on his urinary tract caused
by a bacterial infection. Second Am. Compl. ¶ 76. O'Diah
told Dr. Buttarazzi that he saw microscopic particles
in his urine. Id. ¶ 77. Rather than providing antibiotic
ointment or conducting medical tests, Dr. Buttarrazzi
provided ointment designed to treat an enlarged prostate.
Id. The next day, O'Diah spoke with an unidentified
private physician who advised O'Diah not to use the
ointment because it would not treat the infection. Id. ¶ 78.
Prior to February 26, 2008, O'Diah had been placed on
high blood pressure watch by two nurses at Cayuga.
Second Am. Compl. ¶ 79. While at Cayuga's Inmate
Health Service on March 4, 2008, Mawhir told O'Diah
that O'Diah would not be examined by medical personnel
because he had filed grievances against Cayuga officials.
Id. ¶ 80. Mawhir then told O'Diah that he would be placed
in segregation even though O'Diah had not been issued
disciplinary charges. Id.
*3 O'Diah was excused from Cayuga's work programs
on March 5, 2008, because he was completing blood work
with medical personnel. Second Am. Compl. ¶ 81. O'Diah,
however, alleges that his requests for further medical

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2

O'Diah v. Mawhir, Not Reported in F.Supp.2d (2010)
2010 WL 6230937

treatment and additional excuses from work programs
were refused as a part of a conspiracy by defendants
to deprive him of his constitutional rights. Id. ¶ 82. As
soon as O'Diah returned, a correctional officer assigned
O'Diah to complete “lawn ground and utility work.” Id. ¶
83. O'Diah states that his elevated blood pressure, severe
dizziness, excruciating headaches, and his urinary tract
infection would prevent him from doing such work. Id. He
argues that prison officials, aware of his health problems,
forced him to do such work in retaliation for certain
unstated conduct. Id. O'Diah requested a grievance form
from Napoli but Napoli refused to provide the form.
Id. Later, unnamed correctional officers unnecessarily
pushed him into a wall and threw him onto vehicles.
Id. ¶ 84. Defendants subjected him to thirty days of
confinement without a hearing. Id. As a result, he was
denied visits or mail and his mail was searched without his
consent. Id.
Three days later, Corcoran and Mawhir refused to provide
O'Diah with his legal documents. Second Am. Compl. ¶
85. O'Diah had wanted to provide the documents to a legal
processing advocate who would be visiting him at Cayuga.
Id. O'Diah argues that Corcoran and Mawhir refused to
return the documents in retaliation for O'Diah's exercise
of his constitutional rights. Id. Mawhir then subjected
O'Diah to another Tier II disciplinary determination,
resulting in an additional thirty days of confinement. Id.
On March 10, 2008, Daly wrote to O'Diah regarding
some of O'Diah's funds that Daly had allegedly unlawfully
seized. Second Am. Compl. ¶¶ 86–87. O'Diah was then
sentenced to sixty days of segregated confinement because
his response to Daly had included threats. Id. ¶ 88.
This determination was reversed on administrative appeal
before O'Diah completed the sentence. Id.
O'Diah, an African–American, alleges that Defendants'
unlawful and unconstitutional conduct were all motivated
by their animus toward O'Diah's race. Second Am.
Compl. ¶ 88.

II. Discussion
O'Diah brings this action under 42 U.S.C. § 1983, alleging
that defendants violated his rights under the First, Fourth,
Fifth, Sixth, Eighth and Fourteenth Amendments to the
United States Constitution. Second Amend. Compl. ¶ 2.

He also alleges violations of 42 U.S.C. §§ 1985, 1986, the
Americans with Disabilities Act, 42 U.S.C. § 12101, et
seq. (“ADA”), and N.Y. Correction Law § 138(4). Id. ¶¶
2, 9. He brings this action against Defendants in their
individual and official capacities. Id. Defendants contend
that O'Diah has failed to state causes of action upon
which relief can be granted, that defendants are entitled to
qualified immunity, and that the claims are barred by the
statute of limitations.

A. Legal Standard
*4 Rule 12(b)(6) authorizes dismissal of a complaint that
states no actionable claim. When considering a motion to
dismiss, “a court must accept the allegations contained in
the complaint as true, and draw all reasonable inferences
in favor of the non-movant.” Sheppard v. Beerman, 18
F.3d 147, 150 (2d Cir.1994). However, this “tenet ...
is inapplicable to legal conclusions[; thus, t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Ashcroft v.
Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554–55 (2007)
(holding that “entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action ... [as] courts are not bound
to accept as true a legal conclusion couched as a factual
allegation.”)).
Accordingly, to defeat a motion to dismiss, a claim must
include “facial plausibility ... that allows the court to draw
the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing
Twombly, 550 U.S. at 556 (explaining that the plausibility
test “does not impose a probability requirement ...
it simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence of illegal
[conduct].”)); see also Arar v. Ashcroft, 585 F.3d 559, 569
(2d Cir.2009) (holding that “[o]n a motion to dismiss,
courts require enough facts to state a claim to relief that
is plausible ....”) (citations omitted). Determining whether
plausibility exists is “a content specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 129 S.Ct. at 1950–51.
When, as here, the non-moving party is a pro se litigant,
the court must afford the non-moving party special
solicitude. See Triestman v. Fed. Bureau of Prisons, 470

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F.3d 471, 477 (2d Cir.2006). As the Second Circuit has
stated,
[t]here are many cases in which we have said that a pro
se litigant is entitled to “special solicitude,”; that a pro
se litigant's submissions must be construed “liberally,”;
and that such submission must be read to raise the
strongest arguments that they “suggest[.]” At the same
time, our cases have also indicated that we cannot read
into pro se submissions claims that are not “consistent”
with the pro se litigant's allegations, or arguments that
the submissions themselves do not “suggest,”; that we
should not “excuse frivolous or vexatious filings by pro
se litigants,” and that pro se status “does not exempt a
party from compliance with relevant rules of procedural
and substantive law.”
Id. (internal citations and footnote omitted); see also
Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185,
191–92 (2d Cir.2008) (“On occasions too numerous to
count, we have reminded district courts that ‘when [a]
plaintiff proceeds pro se, ... a court is obliged to construe
his pleadings liberally.” (citations omitted)).

B. Personal Involvement
*5 Personal involvement is an essential prerequisite for
section 1983 liability. Wright v. Smith, 21 F.3d 496, 501
(2d Cir.1994). A section 1983 defendant, however, cannot
be liable “merely because he held a supervisory position of
authority.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996).
Supervisory personnel may be considered “personally
involved” only if the defendant: (1) directly participated
in the alleged constitutional violation; (2) failed to remedy
that violation after learning of it through a report or
appeal; (3) created, or allowed to continue, a policy or
custom under which the violation occurred; (4) had been
grossly negligent in managing subordinates who caused
the violation; or (5) exhibited deliberate indifference to
the rights of inmates by failing to act on information
indicating that violation was occurring. Colon v. Coughlin,
58 F.3d 865, 873 (2d Cir.1995) (citing Williams v. Smith,
781 F.2d 319, 323–24 (2d Cir.1986)). 4
4

The Supreme Court's decision in Ashcroft v. Iqbal,
129 S.Ct. 1937 (2009), arguably casts in doubt the
continued viability of some of the categories set forth
in Colon. See Sash v. United States, 674 F.Supp.2d 531

(S.D.N.Y.2009). Here, it will be assumed arguendo
that all of the Colon categories apply.

1. Carlsen, Corcoran, and Napoli
Even after construing the second amended complaint
liberally, there appear no claim or allegation of personal
involvement by either Corcoran, Carlsen, or Napoli.
Although Corcoran and Carlsen supervised prison
personnel, a position in a hierarchal chain of command,
without more, is insufficient to support a showing of
personal involvement. Wright v. Smith, 21 F.3d 496, 501
(2d Cir.1994). Further, the second amended complaint
fails to make any claim that Carlsen or Corcoran failed to
train any of the defendants, that Carlsen or Corcoran were
grossly negligent in performing their employment duties,
or that the two received and responded to any complaints
or grievances.
Finally, although defendant Napoli has not moved to
dismiss for lack of personal involvement, a review of
the second amended complaint reveals that O'Diah has
failed to allege sufficient facts showing that Napoli
participated in any alleged constitutional violations. 5
Receiving grievances, without more, is insufficient
to establish personal involvement as there exists no
allegation that Napoli took any action. See Bodie v.
Morgenthau, 342 F.Supp.2d 193, 203 (S.D.N.Y.2004)
(citation omitted) (finding personal involvement only
where official received, reviewed, and responded to a
prisoner's complaint).
5

Since O'Diah is proceeding in forma pauperis and is
suing government officials, the court will address this
claim sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2)
(B), 1915A.

As such, all claims against Carlsen, Corcoran, and Napoli
should be dismissed.

2. Daly and Stevenson
Daly and Stevenson also move to dismiss O'Diah's
medical indifference claim based on a lack of personal
involvement. Even after construing the second amended
complaint liberally, O'Diah has failed to allege any facts
to show the personal involvement of either Daly or
Stevenson in the alleged medical indifference. As such, the

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medical indifference claim should be dismissed as to Daly
and Stevenson.

C. Verbal Harassment 6
6

This section addresses the claimed verbal harassment
only. O'Diah also alleges that defendants' violations
of his rights under the First, Fourth, Fifth, Sixth,
Eighth and Fourteenth Amendments were incidents
of harassment against him based on his race and
national origin and in retaliation for exercising
constitutionally protected conduct. The alleged
violations of those rights are addressed in the sections
that follow.

O'Diah claims that he was verbally harassed by
defendants. Second Amend. Compl. ¶¶ 12, 17, 24–26,
28. O'Diah, however, fails to allege specific incidents of
verbal harassment. Even if he were to do so, allegations
of verbal harassment alone are not actionable under §
1983. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d
Cir.1986) (“The claim that a prison guard called [plaintiff]
names ... did not allege any appreciable injury and was
properly dismissed.); Shabazz v. Pico, 994 F.Supp. 460,
474 (S.D.N.Y.1998) ( “[V]erbal harassment or profanity
alone unaccompanied by any injury no matter how
inappropriate, unprofessional, or reprehensible it might
seem do not constitute the violation of any federally
protected right and therefore is not actionable under ...
§ 1983.”). Accordingly,, to the extent that they are based
only on verbal harassment, O'Diah's harassment claims
should be dismissed as to all defendants.

D. First Amendment
1. Retaliation
*6 O'Diah alleges that all of the defendants' alleged
unconstitutional actions were in retaliation for engaging
in constitutionally protected conduct. To state an
actionable claim for retaliation, a plaintiff must first allege
that the plaintiff's conduct was constitutionally protected
and that this protected conduct was a substantial
factor that caused the adverse action against plaintiff.
Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996).
Courts must view retaliation claims with care and
skepticism to avoid judicial intrusion into matters of

prison administration. Jackson v. Onondaga County, 549
F.Supp.2d 204, 214–15 (N.D.N.Y.2008) (McAvoy, J.,
adopting report and recommendation of Lowe, M.J.).
Conclusory allegations alone are insufficient. Id. at 214
(citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)
(explaining that “claim[s] supported by specific and
detailed factual allegations ... ought usually be pursued
with full discovery.”)).
There are numerous instances in the second amended
complaint where O'Diah makes a retaliation claim
without alleging any facts to establish that any of
defendants' alleged actions were motivated by, or
temporally related to, any constitutionally protected
conduct. All O'Diah offers are conclusory allegations
to demonstrate that he was the victim of retaliatory
conduct. These conclusory allegations, without more, are
insufficient to maintain a claim. Jackson, 549 F.Supp.2d
at 214.
Also contained in the second amended complaint,
however, are other allegations of retaliation that deserve
greater analysis. First, as to the claims of retaliation for
refusing to participate in the GED program, O'Diah does
not have a constitutionally protected right to refuse such
a program. As such, any claim of retaliation arising from
this incident should be dismissed. Second, although there
may be a temporal connection between O'Diah losing
control in front of Dr. Floresca and O'Diah being kept
in keeplock for six days beyond the imposed sentence,
O'Diah did not have a constitutionally protected right
to act out simply because Dr. Floresca refused O'Diah's
request for urine analysis and blood work. Finally, even
though O'Diah was confined to keeplock for refusing
to take the prescribed medication, disagreeing over the
proper course of medical treatment does not raise a
constitutional violation. See Section E(1) infra. Thus, any
claim of retaliation arising out of these incidents should
be dismissed. 7
7

O'Diah's argument that the deprivation of medical
care violated the Eighth Amendment is discussed in
subsection E(1) infra.

Although there is no right to file grievances, the right
to file a grievance is a constitutionally protected activity
for retaliation purposes. See Davis v. Goord, 320 F.3d
346, 352–53 (2d Cir.2003). O'Diah alleges that he was
deprived of medical care on March 4, 2008, because he
filed grievances on February 25 and 26, 2008, alleging that

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prison officials had refused to refund money unlawfully
seized by Ms. Daly. The temporal proximity between
the filing of the grievance and the alleged retaliatory
act could support a First Amendment retaliation claim.
Accordingly, defendants' motion to dismiss this claim
should be denied with respect to this incident and against
defendants Mawhir, Dr. Buttarazzi, and Warner.
*7 Liberally construing the second amended complaint,
O'Diah alleges that defendants violated New York
Correction Law § 138(4). 8 Correction Law § 138(4)
prohibits disciplining inmates who “mak[e] written or
oral statements, demands, or requests involving a change
of institutional conditions, policies, rules, regulations, or
laws affecting an institution.” A federal court may exercise
supplemental jurisdiction over a state law claim when
that claim arises out of the same facts upon which the
federal claim is based. See Kirschner v. Klemons, 225
F.3d 227, 238 (2d Cir.2000) (citations omitted). O'Diah
argues that defendants violated Correction Law § 138(4)
when they issued disciplinary charges and refused to
provide him with the proper medication in retaliation
for filing grievances. Second Amend. Compl. ¶¶ 42, 80.
Because those incidents arise out of the same facts as
the federal retaliation claim, the Court should exercise
pendent jurisdiction over the state law claim. Accordingly,
defendants' motion to dismiss O'Diah's Correction Law §
138(4) claim should be denied as to Mawhir, Buttarazzi,
and Warner.
8

This argument is addressed in this section as
N.Y. Correction Law § 138(4) reflects New York's
protection of inmates' First Amendment right to be
free from retaliation for engaging in constitutionally
protected conduct. See Salahuddin v. Harris, 657
F.Supp. 369, 376 (S.D.N.Y.1987) (finding that
Correction Law § 138(4) “suggests that New
York views the broad exercise of inmates' First
Amendment rights as consistent with its own
penological interests”).

2. Retaliatory Transfer
Construing the second amended complaint liberally,
O'Diah alleges that his September 2007 transfer from
Ulster to Cayuga was in retaliation for some unspecified
conduct. Second Amend. Compl. ¶¶ 52, 88. It is well
settled that an inmate does not have a constitutional right
to be incarcerated in a particular facility. Montanye v.

Haymes, 427 U.S. 236, 243 (1976); Meachum v. Fano, 427
U.S. 215, 224 (1976). However, prison officials may not
transfer an inmate in retaliation for the inmate's exercise
of constitutional rights. See Meriwether v. Coughlin, 879
F.2d 1037, 1046 (2d Cir.1989). O'Diah fails to allege
sufficient facts suggesting that he had exercised any
constitutional rights in retaliation for which defendants
might have acted. Thus, the defendants' motion on this
ground should be granted.

3. Mail Tampering
“A prisoner's right to the free flow of incoming and
outgoing mail is protected by the First Amendment.”
Davis, 320 F.3d at 351 (citations omitted). While legal mail
is afforded the greatest protection, “greater protection [is
afforded] to outgoing mail than to incoming mail.” Id.
(citations omitted). “Restrictions ... are justified only if
they further one or more of the substantial governmental
interests of security, order, and rehabilitation and must be
no greater than is necessary or essential to the protection
of the particular governmental interest involved.” Id.
(citations omitted).
“Interference with legal mail implicates a prison inmate's
rights to access to the courts and free speech as guaranteed
by the First and Fourteenth Amendments to the U.S.
Constitution.” Id. In order to state a claim for denial
of access to the courts, including those premised on
interference with legal mail, a plaintiff must allege “that
a defendant caused ‘actual injury,’ i.e. took or was
responsible for actions that ‘hindered [a plaintiff's] efforts
to pursue a legal claim.” Id. (citing Monsky v. Moraghan,
127 F.3d 243, 247 (2d Cir.1997) (quoting Lewis v. Casey,
518 U.S. 343, 351 (1996)). “[A]n isolated incident of
mail tampering is usually insufficient to establish a
constitutional violation.... Rather, the inmate must show
that prison officials regularly and unjustifiably interfered
with the incoming legal mail.” Id. (citations omitted);
see also Washington v. James, 782 F.2d 1134, 1139 (2d
Cir.1986) (explaining that an action may not give rise to
damages if there was “no showing ... that the inmate's
right of access to the courts was chilled or the legal
representation was impaired.”); Morgan v. Montanye, 516
F.2d 1367, 1371 (2d Cir.1975) (holding that a single
instance of mail tampering which did not lead the plaintiff
to suffer any damage was insufficient to support a
constitutional challenge).

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*8 In this case, O'Diah alleges that Corcoran and
Mawhir refused to provide O'Diah with documents
related to his appeals. Second Amend. Compl. ¶ 85.
O'Diah wanted to provide the documents to a legal
processing advocate who would be visiting him at Cayuga.
Id. Even if true, this single incident is insufficient to
support O'Diah's claim of mail tampering. Further, the
general allegations of mail tampering found elsewhere in
the complaint are insufficient to establish a constitutional
violation. With respect to those claims, O'Diah has
failed to plead with any particularity with what mail
defendants tampered. Those conclusory allegations make
no reference to time, place, person or manner of
tampering.
As such, defendants' motion should be granted as to this
claim.

E. Eighth Amendment
The Eighth Amendment explicitly prohibits the infliction
of “cruel and unusual punishment.” U.S. Const. amend.
VIII.

1. Medical Care
This prohibition extends to the provision of medical care.
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). The
test for a § 1983 claim is twofold. First, the prisoner must
show that the condition to which he was exposed was
sufficiently serious. Farmer v. Brennan, 511 U.S. 825, 834
(1994). Second, the prisoner must show that the prison
official demonstrated deliberate indifference by having
knowledge of the risk and failing to take measures to avoid
the harm. Id. “[P]rison officials who actually knew of a
substantial risk to inmate health or safety may be found
free from liability if they responded reasonably to the risk,
even if the harm ultimately was not averted.” Id. at 844.
“ ‘Because society does not expect that prisoners will
have unqualified access to healthcare,’ a prisoner must
first make [a] threshold showing of serious illness or
injury” to state a cognizable medical indifference claim.
Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir.2003)
(quoting Hudson v. McMillian, 503 U .S. 1, 9 (1992)).
Because there is no distinct litmus test, a serious medical

condition is determined by such factors as “(1) whether a
reasonable doctor or patient would perceive the medical
need in question as ‘important and worthy of comment or
treatment,’ (2) whether the medical condition significantly
affects daily activities, and (3) the existence of chronic
and substantial pain.” Brock v. Wright, 315 F.3d 158,
162–63 (2d Cir.2003) (citing Chance v. Armstrong, 143
F.3d 698, 702 (2d Cir.1998)). The severity of the denial
of care should also be judged within the context of the
surrounding facts and circumstances of the case. Smith,
316 F.3d at 185.
Deliberate indifference requires the prisoner “to prove
that the prison official knew of and disregarded the
prisoner's serious medical needs.” Chance, 413 F.3d at 702.
Thus, prison officials must be “intentionally denying or
delaying access to medical care or intentionally interfering
with the treatment once prescribed.” Estelle v. Gamble,
429 U.S. 97, 104 (1976). “Mere disagreement over proper
treatment does not create a constitutional claim” as long
as treatment was adequate. Chance, 143 F.3d at 703. Thus,
“disagreements over medications, diagnostic techniques
(e.g., the need for X-rays), forms of treatment, or the needs
for specialists ... are not adequate grounds for a section
1983 claim.” Sonds v. St. Barnabas Hosp. Corr. Health
Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y.2001).
*9 In this case, defendants do not appear to challenge
that O'Diah was suffering from a serious medical
condition. Instead, defendants assert only that O'Diah has
failed to allege deliberate indifference by defendants. For
the purposes of the pending motion, it will be assumed
that O'Diah suffered a serious medical condition, 9 and
suffered substantial pain arising from the infection.
Second Amend. Compl. ¶¶ 43–44.
9

See Santiago v. Stamp, 303 F. App'x 958 (2d
Cir. Dec. 23, 2008) (assessing deliberate indifference
prong where plaintiff suffered from a urinary tract
infection).

Defendants argue that their actions amounted to nothing
more than a mere disagreement with O'Diah regarding his
treatment. Defs. Mem. of Law at 18–20. O'Diah argues
that defendants refused to provide the proper treatment in
retaliation for O'Diah's refusal to participate in the GED
program. Second Amended. Compl. ¶ 53. Although the
refusal to participate in a GED program is not a protected
right, the refusal to provide the proper treatment for
non-medical reasons may demonstrate an intentional

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disregard for O'Diah's serious medical needs. Moreover,
Dr. Floresca did not conduct a test to determine whether
O'Diah had a urinary tract infection before providing
O'Diah with Motrin. Id. ¶¶ 43–44. Likewise, defendant
Dr. Buttarazzi did not conduct any tests on O'Diah before
prescribing an ointment for an enlarged prostate. Id. ¶¶
77–78. Construing these facts in the light most favorable
to O'Diah, he has advanced a claim that defendants'
actions rose past a level of mere disagreement and into one
of intentional disregard. Further, the refusal to provide
O'Diah with a medical examination on March 4, 2008,
because he had filed grievances against Cayuga officials
could support a claim for deliberate indifference.
Accordingly, defendants' motion to dismiss the medical
indifference claim should be denied with respect to Drs.
Buttarazzi and Floresca and as to Warner but granted in
all other respects.

2. Working Conditions
The constitutional prohibition against cruel and unusual
punishment includes the right to be free from conditions of
confinement that impose an excessive risk to an inmate's
health or safety. Farmer, 511 U.S. at 825; Hathaway, 37
F.3d at 66. Establishing an Eighth Amendment claim
based on medically inappropriate working conditions
requires the plaintiff to show that (1) he was incarcerated
under conditions that posed a substantial risk of serious
harm, and (2) prison officials acted with deliberate
indifference to his health or safety. Farmer, 511 U.S.
at 834. Such a claim may be analogized to a claim for
inadequate medical care, which also requires proof of
deliberate indifference. See, e.g., Gill v. Mooney, 824
F.2d 192, 196 (2d Cir.1987) (prisoner alleged Eighth
Amendment medical claim when he alleged that prison
guards deliberately ignored doctor's order that prisoner
pursue exercise in gym); Cooke v. Stern, No. 9:07–CV–
1292 (GLS/ATB), 2010 U.S. Dist. LEXIS 88387, at *24–
30, 2010 WL 3418393, at *6–8 (N.D.N.Y. Aug. 2, 2010)
(Baxter, M.J.) (alleging of Eighth Amendment medical
claim where prison officials assigned plaintiff to a work
that a doctor determined to be inappropriate for his
medical condition); Atkinson v. Fischer, No. 9:07–cv–
00368 (GLS/GHL), 2009 U.S. Dist. LEXIS 88480, at *4–
5, 2009 WL 3165544, at *2 (N.D.N.Y. Sept. 25, 2009)
(same).

*10 “The deliberate indifference standard embodies both
an objective and subjective prong.” Hathaway, 37 F.3d
at 66. Under the objective standard, a plaintiff must
allege a deprivation “sufficiently serious” to make out
a constitutional violation. Id. (quoting Wilson v. Seiter,
501 U.S. 294, 298 (1991)). An inmate may satisfy this
element by alleging that his prison work duties created
a substantial risk of serious injury or harm. Howard
v. Headly, 72 F.Supp.2d 118, 123–24 (E.D.N.Y.1999)
(collecting cases).
The subjective element focuses on whether the defendant
acted with a “sufficiently culpable state of mind.”
Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir.2006)
(citing Wilson, 501 U.S. at 300). “Deliberate indifference”
requires more than negligence, but less than conduct
undertaken for the very purpose of causing harm. Farmer,
511 U.S. at 835. A prison official acts with deliberate
indifference when he knows of and disregards an excessive
risk to an inmate's health or safety. Hathaway, 37 F.3d at
66. The official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference. Id.
Defendants characterize O'Diah's allegation regarding his
assignment to lawn and ground utility work as a Due
Process claim based on not receiving the work assignment
of his choice. See Defs. Mem. of Law at 12. A “New
York [state] ... prisoner has no protected liberty interest
in a particular job assignment.” Frazier v. Coughlin, 81
F.3d 313, 318 (2d Cir.1996). However, forcing O'Diah
to complete a job assignment with the intention of
aggravating his medical condition could state a claim
for violating O'Diah's right against unconstitutional
conditions of confinement.
As such, defendants' motion to dismiss this claim should
be denied as to Warner, Dr. Buttarazzi, Stevenson, and
Mawhir.

3. Excessive Force
Inmates enjoy an Eighth Amendment protection against
the use of excessive force and may recover damages for
its violations under 42 U.S.C. § 1983. Hudson, 503 U.S. at
9–10. The Eighth Amendment's prohibition against cruel
and unusual punishment precludes the “unnecessary and
wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153,

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173 (1976); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir.2000).
To bring a claim of excessive force under the Eighth
Amendment, a plaintiff must satisfy both objective and
subjective elements. Blyden v. Mancusi, 186 F.3d 252, 262
(2d Cir.1999).
The objective element is “responsive to contemporary
standards of decency” and requires a showing that “the
injury actually inflicted is sufficiently serious to warrant
Eighth Amendment protection.” Hudson, 502 U.S. at
9 (internal citations omitted); Blyden, 186 F.3d at 262.
However, “the malicious use of force to cause harm
constitute[s][an] Eighth Amendment violation per se”
regardless of the seriousness of the injuries. Blyden, 186
F.3d at 263 (citing Hudson, 503 U.S. at 9); see also
Wilkins v. Gaddy, 130 S.Ct. 1175, 1178 (2010) (“The ‘core
judicial inquiry’ ... was not whether a certain quantum of
injury was sustained, but rather whether force was applied
in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm.”). “The
Eighth Amendment's prohibition of ‘cruel and unusual’
punishments excludes from constitutional recognition de
minimis uses of physical force, provided that the use of
force is not of a sort repugnant to the conscience of
mankind.” Hudson, 502 U.S. at 9–10 (citations omitted).
“ ‘Not every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers, violates
a prisoner's constitutional rights.” Sims, 230 F.3d at 22
(citation omitted).
*11 The subjective element requires a plaintiff to
demonstrate the “necessary level of culpability, shown by
actions characterized by wantonness.” Id. at 21 (citation
omitted). The wantonness inquiry “turns on ‘whether
force was applied in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to
cause harm.’ “ Id. (quoting Hudson, 503 U.S. at 7). In
determining whether defendants acted in a malicious or
wanton manner, the Second Circuit has identified five
facts to consider:
“the extent of the injury and the
mental state of the defendant[;] ...
the need for the application of force;
the correlation between that need
and the amount of force used; the
threat reasonably perceived by the
defendants; and any efforts made by

the defendants to temper the severity
of a forceful response.”
Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.2003) (internal
quotation marks and citations omitted).
Liberally construing O'Diah's second amended complaint,
he has satisfied the objective component of the excessive
force inquiry. The second amended complaint alleges
that Mawhir and others repeatedly poured cold water
on O'Diah without provocation and while O'Diah was
sleeping. Although one incident might be insufficient to
state an Eighth Amendment violation, O'Diah alleges
that this occurred “whenever [he] was sleeping.” Second
Amend. Compl. ¶ 74. Such repeated conduct would rise
beyond de minimis use of physical force and evinces
maliciousness. Moreover, in addition to pouring cold
water on O'Diah, O'Diah alleges that Mawhir had joined
other inmates in beating O'Diah without provocation.
Accordingly, defendant's motion to dismiss the excessive
force claim should be denied as to Mawhir but granted in
all other respects. 10
10

O'Diah has also alleged other incidents where he was
assaulted by unnamed correctional officers. Second
Amend. Compl. ¶¶ 42, 74–75. However, O'Diah has
failed to allege any claims against John Doe or
Jane Doe defendants. To the extent that O'Diah
is alleging excessive force against these unnamed
correctional officers, he must file an amended
complaint in accordance with N.D.N.Y.L.R. 7.1(a)
(4). Moreover, although not raised in the second
amended complaint, O'Diah's reply to defendants'
motion accuses defendants of “repeatedly” stripping
him, shackling him, and parading him around like a
slave. Dkt. No. 56 ¶ 40. The defendants also allegedly
told O'Diah that he had to do “what his master had
told him to do.” Id. If true, this incident could support
an Eighth Amendment claim. To the extent that
O'Diah intends to rely on this allegation, however, he
must file an amended complaint in accordance with
Local Rule 7.1(a)(4).

4. Failure to Protect
Eighth Amendment obligations also include the duty to
protect prisoners from known harms. Farmer, 511 U.S.
at 829. “The Constitution does not mandate comfortable
prisons but neither does it permit inhumane ones, and it is
now settled that the treatment a prisoner receives in prison

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and the conditions under which he is confined are subject
to scrutiny under the Eighth Amendment.” Id . at 832.
Where the inmate is alleging “a failure to protect harm, the
inmate must show that he is incarcerated under conditions
posing a substantial risk of serious harm.” Id. at 834 (citing
Helling v. McKinney, 509 U.S. 25, 31–32 (1993)).
As with other Eighth Amendment claims, a “plaintiff
must satisfy both an objective ... and subjective test.”
Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir.1996) (citations
omitted). To state a cognizable failure to protect claim,
(1) “the inmate [must be] incarcerated under conditions
imposing a substantial risk of serious harm,” and (2)
the prison offic[ial] must “know of and disregard an
excessive risk to inmate health and safety; the official
must be both aware of facts from which the inference
could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Matthews
v. Armitage, 36 F.Supp.2d 121, 124–25 (N.D.N.Y.1999)
(internal citations and quotation marks omitted).
*12 Liberally construing O'Diah's complaint, he alleges
that defendants failed to protect him from beatings by
other inmates. At best, however, the allegations are
sufficient to state the elements of a constitutional claim
against Mawhir only. Mawhir allegedly participated in
beating O'Diah and failed to prevent other inmates from
doing so even though Mawhir was aware of the beatings.
Second Amend. Compl. ¶ 74–75. Accordingly, defendants'
motion to dismiss should be denied with respect to
Mawhir but should be granted as to all other defendants.

F. Due Process
An inmate asserting a violation of his or her right to due
process must establish the existence of a protected interest
in life, liberty, or property. See Perry v. McDonald, 280
F.3d 159, 173 (2d Cir.2001).

1. Grievance Procedures
“Prisoners, including pretrial detainees, have a
constitutional right to access to the courts....” Bourden
v. Loughren, 386 F.3d 88, 92 (2d Cir.1994) (internal
quotation marks omitted) (citing Bounds v. Smith, 430
U.S. 817, 21–22 (1977) (citations omitted) (holding
that all prisoners have a well-established Constitutional

right to “adequate, effective, and meaningful” access to
courts). “[I]nmate grievance programs created by state law
are not required by the Constitution and consequently
allegations that prison officials violated those procedures
does not give rise to a cognizable § 1983 claim.” Shell
v. Brzezniak, 365 F.Supp.2d 362, 370 (W.D.N.Y.2005)
(citations omitted). However, “[i]f prison officials ignore a
grievance that raises constitutional claims, an inmate can
directly petition the government for redress of that claim.”
Id. at 370 (citations omitted).
In this case, O'Diah alleges that Napoli refused to process
O'Diah's grievance petition, and, on one occasion, refused
to provide O'Diah with a grievance form. Second Amend.
Compl. ¶¶ 69, 71, 73–74, 83, 90. However, O'Diah cannot
allege facts sufficient to establish that he had a liberty
interest which required constitutional protection. Rather,
O'Diah uses conclusory language to make broad claims of
unconstitutional conduct. As such, defendants' motion to
dismiss on this ground should be granted.

2. Disciplinary Determinations and Keeplock Confinement
To establish a protected interest, a prisoner must satisfy
the standard set forth in Sandin v. Conner, 515 U.S.
472, 483–84 (1995). In the context of prison disciplinary
proceedings, this standard requires that the confinement
was atypical and significant in relation to ordinary prison
life. Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.1999);
Frazier, 81 F.3d at 317.
O'Diah alleges that his due process rights were violated
during various disciplinary hearings. However, O'Diah
was never sentenced to confinement for more than thirty
days. “[K]eeplock ... of 30 days or less in New York
prisons is not ‘atypical or significant hardship’ under
Sandin.” Auleta v. LaFrance, 233 F.Supp.2d 396, 398
(N.D.N.Y.2010) (citing Williams v. Keane, No. Civ. 95–
0379(AJP)(JGK), 1997 U.S. Dist. LEXIS 12665, at *13–
22, 1997 WL 527677, at *6–8 (S.D.N.Y. Aug. 25, 1997)
(Peck, M.J.) (citing cases)). To the extent that O'Diah
also alleges that he lost certain privileges, “the loss of
phone, package, and commissary privileges does not give
rise to a protected liberty interest under New York law.”
Smart v. Goord, 441 F.Supp.2d 631, 640 (S.D.N .Y.2006)
(citing Husbands v. McClellan, 990 F.Supp. 214, 217 (W .
D.N.Y.1998), citing in turn Frazier, 81 F.3d at 317).

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*13 O'Diah alleges that on at least one occasion, he
was confined to keeplock for thirty-six days, six days
beyond the imposed sentence. Second Amend. Compl.
¶ 51. As to this claim, more intensive fact-finding is
required and dismissal at this stage is precluded on
this ground. See Sealey v. Giltner, 116 F.3d 47, 52
(2d Cir.1997) (“we have indicated the desirability of
fact-finding before determining whether a prisoner has
a liberty interest in remaining free from segregated
confinement.”). Therefore, defendants' motion on this
ground as to O'Diah's claim based on the alleged service
of thirty-six days in keeplock should be denied.
As to the merits of O'Diah's Due Process claims, inmates
are not given “the full panoply of [due process] rights” but
are still afforded procedural process. Wolff v. McDonnell,
418 U.S. 539, 556 (1974). Prisoners are “entitled to
advance written notice ...; a hearing affording him a
reasonable opportunity to call witnesses and present
documentary evidence; a fair and impartial hearing
officer; and a written statement of the disposition
including the evidence relied upon and the reasons for the
disciplinary actions taken.” Sira v. Morton, 380 F.3d 57,
69 (2d Cir.2004) (citations omitted). O'Diah's only claims
here rest on allegations that are wholly conclusory. He
fails to allege facts from which a reasonable fact-finder
could conclude that he failed to receive adequate advanced
notice, an opportunity to be heard, a fair hearing officer,
or any of the other aspects of fairness in the proceedings
to which he was due.
As such, defendants' motion as to this ground should be
granted.

3. Defamation
O'Diah makes broad claims that defendants defamed him.
Second Am. Compl. ¶ 70. With one possible exception,
O'Diah fails to allege any specific instances of defamation.
Rather, he merely makes conclusory allegations accusing
officials of slander and libel. Thus, his defamation claim
falls far short of the plausibility standard required by
Ashcroft v. Iqbal. Iqbal, 129 S.Ct. 1937, 1949 (2009) ((“[A]
complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’ ”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).

Construing the Second Amended Complaint liberally,
O'Diah appears to claim Dr. Floresca and Carlsen
defamed him when those defendants told Ulster personnel
that O'Diah was “crazy.” Second Amend. Compl. ¶¶
46–48. Even if this statement were defamatory, a “state
defamation action for slander by a government official,
without more, cannot be converted into a federal action
for loss of liberty under the Due Process Clause of the
Fourteenth Amendment.” Patterson v. City of Utica, 370
F.3d 322, 328 (2d Cir.2004); see also Paul v. Davis, 424
U.S. 693, 709 (1976). “Section 1983 requires that the
alleged conduct violate a constitutionally safeguarded
right.” Venable v. Goord, No. 03 Civ. 4434(RMB), 2004
U.S. Dist. LEXIS 18275, at *13, 2004 WL 2033069, at
*5 (S.D.N.Y. Sept. 7, 2004) (citing Savage v. Snow, 575
F.Supp. 828, 837 (S . D.N.Y.1983)).
*14 Thus, defendants' motion as to O'Diah's defamation
claim should be granted.

4. Forced Participation in GED Program
O'Diah accuses Stevenson and Corcoran of “reckless and
gross intentional disregards [sic] for [O'Diah's] academic
credentials” because they forced O'Diah into a GED
program. While O'Diah may not agree with the necessity
to complete the program, “it is not the function of
this court to micromanage the New York prison system
or to second guess officials, including those regarding
programming.” Sumpter v. Skiff, No. 05–cv–868, 2008
WL 4518996, at *9 (N.D.N.Y. Sept. 30, 2008). Rather, the
court's function “in a case of this nature is to ensure that
the rights guaranteed to a prison inmate by the United
States Constitution and federal law are protected.” Id.
Further, “prison officials have a relatively strong interest
in maintaining order in the prison and encouraging
inmates to comply with mandatory programs as part of
their rehabilitation.” Dixon v. Leonardo, 886 F.Supp. 987,
993 (N.D .N.Y.1995). Therefore, even if defendants forced
O'Diah to participate in a GED program, defendants did
not deprive O'Diah of a constitutional right. Accordingly,
O'Diah has failed to present a cognizable claim and
defendants' motion as to this claim should be granted.

5. Confiscation of Property

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O'Diah contends that Daly unlawfully confiscated his
property. Second Amend. Compl. ¶¶ 71–72, 86–87. An
inmate has a right not to be deprived of property without
due process. However, federal courts do not provide
redress for the deprivation of property if there is an
adequate state court remedy which the plaintiff can
pursue. Hudson v. Palmer, 468 U.S. 517, 533 (1984).
“An Article 78 proceeding permits a petitioner to submit
affidavits and other written evidence, and where a material
issue of fact is raised, have a trial on the disputed issue,
including constitutional claims.” Locurto v. Safir, 264
F.3d 154, 174 (2d Cir.2001) (citations omitted); see also
N.Y. C.P.L.R. §§ 7803, 7804; Campo v. New York City
Employees' Ret. Sys., 843 F.2d 96, 101 (2d Cir.1988)
(“Article 78 ... provides a summary proceeding which can
be used to review administrative decisions.”). State law
also provides that “[a]ny claim for damages arising out
of an act done ... within the scope of ... employment and
in the discharge of the duties of any officer or employee
of the department [of corrections] shall be brought and
maintained in the court of claims as a claim against the
state.” N.Y. Corr. Law § 24(2).
In this case, O'Diah contends that there was an
unconstitutional deprivation when his personal property
was allegedly confiscated by Daly. Such claims fail as
a matter of law for several reasons. First, the Article
78 11 procedure exists and affords an adequate state court
remedy. Second, because O'Diah is suing for damages, he
must pursue his claims here against New York State in the
New York Court of Claims pursuant to Corrections Law
§ 24. Thus, the correct venue to litigate these claims is in
state court.
11

N.Y. C.P.L.R. art 78 (McKinney 1994 & Supp.2007)
(establishes the procedure for judicial review of the
actions and inactions of state and local government
agencies and officials.

*15 Accordingly, defendants' motion should be granted
as to this claim.

G. Equal Protection
The Fourteenth Amendment's Equal Protection Clause
mandates equal treatment under the law. Essential to
that protection is the guarantee that similarly situated
persons be treated equally. City of Cleburne, Tex. v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Philips v.
Girdich, 408 F.3d 124, 129 (2d Cir.2006) (“To prove a
violation of the Equal Protection Clause ... a plaintiff must
demonstrate that he was treated differently than others
similarly situated as a result of intentional or purposeful
discrimination.”).
[T]he Equal Protection Clause
bars the government from selective
adverse treatment of individuals
compared with other similarly
situated
individuals
if
such
selective treatment was based on
impermissible considerations such
as race, religion, intent to inhibit or
punish the exercise of constitutional
rights, or malicious or bad faith
intent to injure a person.
Vega v. Artus, 610 F.Supp.2d 185, 209 (N.D.N.Y.2009)
(internal quotation marks and citations omitted).
In this case, O'Diah alleges that, as an African American,
he was treated differently from others but has failed
to show how he was treated differently. Vague and
conclusory allegations of Equal Protection violations are
insufficient to state a claim. See, e.g ., John Gil Constr.
Inc. v. Riverso, 99 F.Supp.2d 345, 353 (S.D.N .Y.2000)
(“[A]ssertions of selective enforcement and racial animus
[that] are wholly conclusory and unaccompanied by
any supporting allegations ... are insufficient to state a
claim under the Equal Protection Clause or 42 U.S.C.
§ 1983”) (citations omitted). Accordingly, defendants'
motion should be granted on this ground.

H. Conspiracy
O'Diah alleges that the defendants conspired together
to deprive him of his constitutional rights. “Section
1985 prohibits conspiracies to interfere with civil rights.”
Davila v. Secure Pharmacy Plus, 329 F.Supp.2d 311, 316
(D.Conn.2004). To state a claim for relief under § 1985(3),
a plaintiff must show:
(1) a conspiracy; (2) for the purpose
of depriving, either directly or
indirectly, any person or class of
persons of the equal protection of
the laws, or of equal privileges

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and immunities under the laws; and
(3) an act in furtherance of the
conspiracy; (4) whereby a person
is either injured in his person or
property or deprived of any right of
a citizen of the United States.
United Bd. of Carpenters & Joiners of Am., Local 610 v.
Scott, 463 U.S. 825, 828–29, 103 S.Ct. 3352 (1983); see
also Iqbal v. Hasty, 490 F.3d 143, 176 (2d Cir.2007). “In
addition, the conspiracy must be motivated by some classbased animus.” Hasty, 490 F.3d at 176 (citations omitted).
Once again, O'Diah does not assert any facts giving rise
to a conspiracy. First, O'Diah vaguely asserts conclusory
statements relating to an alleged conspiracy among
defendants. This is insufficient. See generally Thomas v.
Roach, 165 F.3d 137, 147 (2d Cir.1999) (granting summary
judgment for a § 1985(3) claim where the “assertions
were conclusory and vague, and did not establish the
existence of an agreement among defendants to deprive
[plaintiff] of his constitutional rights”). Second, there has
been proffered no evidence relating to agreements between
the defendants, the purpose of their alleged conspiracy,
or an intent by defendants to deprive O'Diah of his civil
rights.
*16 Third, “[a]s the Second Circuit has noted repeatedly,
conspiracy claims are to be viewed with skepticism
and must be supported by more than mere conclusory
allegations.” Webb v. Goord, 340 F.3d 105, 110 (2003)
(“In order to maintain an action under Section 1985, a
plaintiff must provide some factual basis supporting a
meeting of the minds, such that defendants entered into an
agreement, express or tacit, to achieve the unlawful end.”)
(internal quotation marks omitted). O'Diah's conclusory
allegations of a conspiracy against him fail to provide any
factual basis plausibly to support a meeting of the minds
between the defendants or that defendants entered into an
agreement to violate his rights.
Finally, even if O'Diah's allegations were found to be
more than merely conclusory, O'Diah's conspiracy claims
are barred by the “intra-corpo rate conspiracy” doctrine.
The doctrine provides that a corporation or public entity
“generally cannot conspire with its employees or agents as
all are considered a single entity.” Everson v. New York
City Transit Auth., 216 F.Supp.2d 71, 76 (E.D.N.Y.2002)
(citation omitted); see also Orafan v. Goord, 411 F.Supp.2d
153, 165 (N.D.N.Y.2006) (holding that the conspiracy

claim failed because the alleged co-conspirators were all
DOCS officials and employees acting within the scope
of their employment) (internal citations and quotation
marks omitted).
An exception exists if the individuals are motivated by
personal interests, separate and apart from the entity.
Orafan v. Goord, 411 F.Supp.2d at 165. To allege
facts plausibly suggesting that defendants were pursuing
personal interests, more is required than merely alleging
defendants were motivated by personal bias. See Peters
v. City of New York, No. 04–cv–9333 (LAK), 2005
U.S. Dist. LEXIS 2303, at *10–11, 2005 WL 387141, at
*4 (S.D.N.Y. Feb. 16, 2005). “[P]ersonal bias does not
constitute personal interest and is not sufficient to defeat
the intra-corporate conspiracy doctrine.” Everson, 216
F.Supp.2d at 76 (citations omitted).
In this case, all of the defendants were DOCS employees
during the period set forth in the second amended
complaint and all were acting within the scope of their
employment. Therefore, the intra-corporate conspiracy
doctrine applies. Additionally, the exception to the
doctrine does not apply here. O'Diah does not claim
that each defendant was pursuing his or her independent
personal interests, but merely that their actions were
motivated by their personal bias against his “African
origin.” Accordingly, defendants' motion as to O'Diah's §
1985(3) claim should be granted.
O'Diah also alleges violations of 42 U.S.C. § 1986.
If any defendant “ha[d] knowledge that any of the
wrongs ... mentioned in section 1985 ... [we]re about
to be committed, and ha[d] power to prevent or aid in
preventing the commission of the same, [and] neglect[ed]
or refuse[d] to do so ..., [he] shall be liable to the party
injured. 42 U.S.C. § 1986. However, a “claim under section
1986 lies only if there is a viable conspiracy claim under
section 1985.” Gagliardi v. Vill. of Pawling, 18 F.3d 188,
194 (2d Cir.1994). No such claim exists here.
*17 Accordingly, defendants' motion as to O'Diah's §
1986 claim should be granted.

I. ADA Claim
Title II of the ADA provides that “no qualified individual
with a disability shall, by reason of such disability, be

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excluded from participation in or be denied the benefits
of ... a public entity, or be subjected to discrimination by
any such entity.” 42 U.S.C. § 12132. Title II applies to
state inmates. Giraldi v. Bd. of Parole, No. 04–CV–877
(FJS/DRH), 2008 WL 907321, at *5 (N.D.N.Y. Mar. 31,
2008). To state a claim under the ADA, an inmate must
demonstrate that
(1) he or she is a “qualified
individual with a disability”; (2)
he or she is being excluded from
participation in, or being denied the
benefits of some service, program,
or activity by reason of his or her
disability; and (3) [the facility that]
provides the service, program or
activity is a public entity.
Clarkson v. Coughlin, 898 F.Supp.
(S.D.N.Y.1995); 42 U.S.C. § 12132.

1019,

1037

As to the first element, a person is an individual with a
qualified disability if “(A) a physical or mental impairment
... substantially limits one or more of the major life
activities of such individual, (B) [there is] a record of such
an impairment, or (C) [the individual is] being regarded as
having such an impairment.” 42 U.S.C. § 12102(2)(A)-(C).
If a plaintiff fails to identify the specific activity limited
by the impairment and fails to allege that it constitutes
a major life activity, the ADA claim must be dismissed.
Reeves v. Johnson Controls World Servs., 140 F.3d 144,
153–54 (2d Cir.1998).
First, a claim under the ADA cannot be brought
against individuals and, therefore, the claims against the
individual defendants under the ADA must be dismissed.
See Fox v. State Univ. of N.Y., 497 F.Supp.2d 446, 451
(E.D.N.Y.2007); Hallet v. New York State Dep't of Corr.
Serv., 109 F.Supp.2d. 190, 199 (S.D.N.Y.2000). Second,
O'Diah has alleged no facts to establish the first element of
his claim. In fact, he presents no evidence of any disability
at all. Although O'Diah had a urinary tract infection
and high blood pressure, he has failed to allege any facts
showing how those conditions have substantially limited
his life activities. Finally, O'Diah fails to allege any facts
that show an exclusion or denial of benefits based on any
alleged disabilities.
Accordingly, defendants' motion as to the ADA claim
should be granted.

J. Qualified Immunity
Defendants claim that they are entitled to qualified
immunity even if O'Diah's constitutional claims are
substantiated. Qualified immunity generally protects
governmental officials from civil liability “insofar as their
conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982); Aiken v. Nixon, 236 F.Supp.2d 211, 229–30
(N.D.N.Y.2002), aff'd, 80 F. App'x 146 (2d Cir. Nov. 10,
2003). However, even if the constitutional privileges “are
so clearly defined that a reasonable public official would
known that his objections might violate those rights,
qualified ... immunity might still be available ... if it was
objectively reasonable for the public official to believe
that his acts did not violate those rights.” Kaminsy v.
Rosenblum, 929 F.2d 922, 925 (2d Cir.1991); Magnotti v.
Kuntz, 918 F.2d 364, 367 (2d Cir.1990) (internal citations
omitted).
*18 A court must first determine whether, if plaintiff's
allegations are accepted as true, there would be a
constitutional violation. Saucier v. Katz, 533 U.S. 194,
201 (2001). Only if there is a constitutional violation does
a court proceed to determine whether the constitutional
rights were clearly established at the time of the alleged
violation. Aiken, 236 F.Supp.2d at 230. Here, the second
prong of the inquiry must be discussed with regard
to O'Diah's First Amendment claim to be free from
retaliation for filing a grievance against abuse claim,
and O'Diah's Eighth Amendment claims of excessive
force, medical indifference, and medically inappropriate
work conditions. None of O'Diah's other claims need be
addressed because, as discussed supra, it has not been
shown that defendants violated O'Diah's constitutional
rights as alleged in those claims.
There is no question that it was settled in November 2007
and March 2008 that the Eighth Amendment prohibited
(1) a corrections officer from assaulting or intentionally
inflicting harm on an inmate, Hudson, 503 U.S. at 9–
10, and (2) required that inmates are provided “with ...
reasonable safety [as i]t is cruel and unusual punishment
to hold criminals in unsafe conditions,” Helling, 509 U.S.
at 33 (internal quotation marks and citations omitted),
whether they pertain to medical care or expectation

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of protection from corrections staff from dangerous
situations. Thus, accepting all of O'Diah's allegations as
true, qualified immunity should not be granted at this
stage to (1) Mawhir for his involvement in his use of
excessive force against O'Diah and his failure to protect
O'Diah from beatings by other inmates; (2) defendants
for retaliating against O'Diah for filing grievances alleging
beatings; (3) Warner, Dr. Buttarazzi, Stevenson, and
Mawhir for assigning him to medically inappropriate
work conditions, and (4) Drs. Floresca and Buttarazzi for
alleged deliberate indifference to O'Diah's serious medical
needs. Defendants' motion on this ground as to those
defendants should be denied.

K. Statute of Limitations
Defendants' Notice of Motion asserts the affirmative
defense of statute of limitations. Dkt. No. 53. Defendants,
however, fail to discuss this affirmative defense in their
Memorandum of Law. O'Diah addresses this argument.
Dkt. No. 56 ¶¶ 49–50.
While there is no provision in § 1983, § 1988 provides
that state law may not apply if inconsistent with the
Constitution or federal law. 42 U.S.C. § 1988(a); Moor
v. County of Alameda, 411 U.S. 693, 702–03 (1973).
In New York, the applicable statute of limitations for
a § 1983 suit is the three-year period governing suits
to recover upon a liability created or imposed by a
statute. See Owens v. Okure, 488 U.S. 235, 249–51 (1989);
Romer v. Leary, 425 F.2d 186, 187 (2d Cir.1970); N.Y.
C.P.L.R. 214(2) (McKinney 2003). Under the “prison
mailbox rule,” a pro se prisoner's § 1983 complaint
is deemed filed, for statute of limitations purposes,
when it is delivered to prison officials.” Tapia–Ortiz
v. Doe, 171 F.3d 150, 152 (2d Cir.1999) (citing Dory
v. Ryan, 999 F.2d 679, 682 (2d Cir.1993); Houston v.
Lack, 487 U.S. 266, 270 (1988)). Here, this affirmative
defense should be discussed with regard to O'Diah's First
Amendment right to file a grievance against abuse claim,
and O'Diah's Eighth Amendment claims of excessive
force, medical indifference, and medically inappropriate
work conditions. None of O'Diah's other claims need be
addressed here because, as discussed supra, it has not been
shown that defendants violated O'Diah's constitutional
rights.

*19 The earliest incident of an alleged constitutional
violation that survives defendants' motion to dismiss
occurred on September 13, 2007, when Dr. Floresca
provided O'Diah with Motrin instead of administering
a test for a urinary tract infection. All other alleged
constitutional violations that survive the pending motion
occurred after this date. The second amended complaint
is deemed filed on October 23, 2009. 12 As such, all events
giving rise to the surviving claims occurred within the
statute of limitations. Accordingly, defendants' motion is
denied on this ground.
12

The original complaint here was filed on July 11,
2008. Dkt. No. 1. However, the applicability of the
“relation back doctrine” need not be addressed since
all claims were asserted within three years of the filing
of the second amended complaint.

III. CONCLUSION
For the reasons stated above, it is hereby
RECOMMENDED that defendants' motion to dismiss
(Dkt. No. 53) be:
1. DENIED as to O'Diah's claims of,
A. Retaliation, including violations of New York
Correction Law § 138(4), against defendants Mawhir, Dr.
Buttarazzi, and Warner;
B. Medical indifference against defendants Dr. Buttarazzi,
Dr. Floresca, and Warner;
C. Medically inappropriate work conditions against
defendants Dr. Buttarazzi, Warner, Stevenson, and
Mawhir;
D. Excessive force against defendant Mawhir; and
E. Failure to protect against defendant Mawhir; and
2. GRANTED as to all other claims and all other
defendants.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge
written objections to the foregoing report. Such objections
shall be filed with the Clerk of the Court “within
fourteen (14) days after being served with a copy of
the ... recommendation.” N.Y.N.D.L.R. 72 .1(c) (citing 28

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U.S.C. § 636(b)(1)(B)-(C)). FAILURE TO OBJECT TO
THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85 (2d Cir.1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir.1989));
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a).
End of Document

All Citations
Not Reported in F.Supp.2d, 2010 WL 6230937

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B. Medical indifference against defendants Dr.
Buttarazzi, Dr. Floresca, and Warner;

2011 WL 933846
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Aror Ark O'DIAH, Plaintiff,
v.
A. MAWHIR, Cayuga Correctional Facility; Michael
Corcoran, Superintendent, Cayuga Correctional
Facility; Scott C. Carlsen, Superintendent, Ulster
Correctional Facility; P. Buttarazzi, Chief Physician,
Cayuga Correctional Facility Inmate Clinic; Jesus
Floresca, Chief Physician, Ulster Correctional
Facility Inmate Clinic; K. Stevenson, Cayuga
Correctional Facility Program Coordinator; Ms.
Daly; Mary Warner, Nurse Administrator, Cayuga
Correctional Facility; and T. Napoli, Defendants.
No. 9:08–CV–322 (TJM)(DRH).
|
March 16, 2011.
Attorneys and Law Firms
Aror Ark O'Diah, Collins, NY, pro se.
Roger W. Kinsey, Office of Attorney General, Albany,
NY, for Defendants.

DECISION & ORDER
THOMAS J. McAVOY, Senior District Judge.
I. INTRODUCTION
*1 This pro se action brought pursuant to 42 U.S.C. §
1983 was referred by this Court to the Hon. David R.
Homer, United States Magistrate Judge, for a Report–
Recommendation pursuant to 28 U.S.C. § 636(b) and
Local Rule N.D.N.Y. 72.3(c). In his December 14, 2010
Report–Recommendation and Order, Magistrate Judge
Homer recommended that Defendants' motion to dismiss
(Dkt. No. 53) be:
1. DENIED as to O'Diah's claims of,
A. Retaliation, including violations of New York
Correction Law § 138(4), against defendants Mawhir,
Dr. Buttarazzi, and Warner;

C. Medically inappropriate work conditions against
defendants Dr. Buttarazzi, Warner, Stevenson, and
Mawhir;
D. Excessive force against defendant Mawhir; and
E. Failure to protect against defendant Mawhir; and
2. GRANTED as to all other claims and all other
defendants.
Plaintiff has filed objections to these recommendations.

II. STANDARD OF REVIEW
When objections to a magistrate judge's report and
recommendation are lodged, the district court makes a
“de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” See 28 U.S.C. § 636(b)(1)(C). General
or conclusory objections, or objections which merely
recite the same arguments presented to the magistrate
judge, are reviewed for clear error. Farid v. Bouey, 554
F.Supp.2d 301, 306 n. 2 (N.D.N.Y.2008); see Frankel
v. N.Y.C., 2009 WL 465645 at *2 (S.D.N.Y. Feb.25,
2009). 1 After reviewing the Report–Recommendation,
the Court may “accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge. The judge may also receive further
evidence or recommit the matter to the magistrate judge
with instructions.” 28 U.S.C. § 636(b)(1)(C).
1

The Southern District wrote in Frankel:
The Court must make a de novo determination
to the extent that a party makes specific
objections to a magistrate's findings. United
States v. Male Juvenile, 121 F.3d 34, 38
(2d Cir.1997). When a party makes only
conclusory or general objections, or simply
reiterates the original arguments, the Court
will review the report strictly for clear error.
See Pearson–Fraser v. Bell Atl., No. 01 Civ.
2343, 2003 W L 43367, at *1 (S.D.N.Y. Jan.
6, 2003); Camardo v. Gen. Motors Hourly–
Rate Employees Pension Plan, 806 F.Supp. 380,
382 (W.D.N.Y.1992). Similarly, “objections that
are merely perfunctory responses argued in

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1

O'Diah v. Mawhir, Not Reported in F.Supp.2d (2011)
2011 WL 933846
an attempt to engage the district court in a
rehashing of the same arguments set forth in the
original [papers] will not suffice to invoke de
novo review.” Vega v. Artuz, No. 97 Civ. 3775,
2002 W L 31174466, at *1 (S.D.N.Y. Sept.30,
2002).
2009 WL 465645, at *2.

III. DISCUSSION
Having reviewed de novo those portions of the Report–
Recommendation and Order that Plaintiff has lodged
objections to, the Court determines to adopt the
recommendations for the reasons stated in Magistrate
Judge Homer's thorough report.

IV. CONCLUSION
Therefore, the Court ADOPTS the recommendations
made by Magistrate Judge Homer in their entirety.
Accordingly, it is hereby ORDERED that Defendants'
motion to dismiss (Dkt. No. 53) is:
1. DENIED as to O'Diah's claims of,
End of Document

A. Retaliation, including violations of New York
Correction Law § 138(4), against defendants Mawhir,
Dr. Buttarazzi, and Warner;
B. Medical indifference against defendants Dr.
Buttarazzi, Dr. Floresca, and Warner;
C. Medically inappropriate work conditions against
defendants Dr. Buttarazzi, Warner, Stevenson, and
Mawhir;
D. Excessive force against defendant Mawhir; and
E. Failure to protect against defendant Mawhir; and
2. GRANTED as to all other claims and all other
defendants, and these other claims are DISMISSED.

*2 IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2011 WL 933846
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2

Green v. New York City Dept. of Correction, Not Reported in F.Supp.2d (1999)
1999 WL 4961

1999 WL 4961
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Shawn GREEN, Plaintiff,
v.
N.Y.C. DEPARTMENT OF CORRECTION;
Disciplinary Hearing Officer, and Correction
Officer Middleton, # 6678, Defendants.
No. 97Civ.8191 (JSR)(KNF).
|
Jan. 6, 1999.

for amending his complaint. By Order dated October
21, 1998, the Court directed plaintiff to serve and file
such information as would clarify further the plaintiff's
position respecting his desire to amend his complaint.
Thereafter, on October 30, 1998, plaintiff submitted to
the Court an Addendum Motion for Leave to File an
Amended Complaint (“Addendum Motion”). Defendants
responded to plaintiff's Addendum Motion in a writing
addressed to the Court dated November 5, 1998. In
that writing, as noted above, defendants opposed only
that portion of the Addendum Motion which seeks to
substitute the City as a party defendant in the place of the
Defendant Department of Correction.

DISCUSSION
MEMORANDUM and ORDER
FOX, Magistrate J.
INTRODUCTION
*1 In this action, brought under 42 U.S.C. § 1983, pro
se plaintiff alleges that, while an inmate in the defendants'
custody, defendants denied him due process because
they failed to provide him a means to appeal from the
imposition of a disciplinary penalty. Plaintiff has made a
motion pursuant to Federal Rules of Civil Procedure 15(a)
and 19(a) to amend his complaint to: (a) substitute the City
of New York (“City”) as a defendant in the place of the
City's Department of Correction; (b) withdraw a claim for
mental anguish; (c) assert a claim under the Fourteenth
Amendment to the United States Constitution; and (d)
have the Court exercise its supplemental jurisdiction so
that claims based upon New York General Municipal
Law § 50–j and various provisions of the New York State
Constitution might be entertained. Defendants oppose
only that branch of plaintiff's motion which seeks to join
the City as a defendant; defendants contend that it would
be futile to do so. For the reasons which follow, plaintiff's
application is granted in part and denied in part.

BACKGROUND
At a pretrial conference held with the parties on October
20, 1998, the prospect of plaintiff making an application to
amend his complaint was discussed. At that time, plaintiff
was unable to articulate, with any specificity, the rationale

Fed.R.Civ.P. 15(a) provides that: “[a] party may amend
the party's pleading once as a matter of course at any time
before a responsive pleading is served.... Otherwise a party
may amend the party's pleading by leave of the court ...
and leave shall be freely given when justice so requires.”
The determination to grant or to deny a motion to amend
a complaint is within the discretion of the Court. New
York State Nat'l Org. for Women v. Cuomo, 182 F.R.D. 30,
36 (S.D.N.Y.1998). However, there must be good reason
to deny such a motion. Acito v. Imcera Group, Inc., 47 F.3d
47, 55 (2d Cir.1995)(citing S.S. Silverblatt, Inc. v. East
Harlem Pilot Block–Bldg., 1 Hous. Dev. Fund Co., Inc., 608
F.2d 28, 42 [2d Cir.1979] ). Futility of the amendment is a
valid reason to deny the motion. See Foman v. Davis, 371
U.S. 178, 182, 83 S.Ct. 227, 230 (1962).
In the case at bar, defendants maintain that substituting
the City for defendant Department of Correction would
be futile because: (1) plaintiff failed to file a notice-ofclaim timely with the City as required by New York
General Municipal Law §§ 50–e and 50–i and that the
period during which plaintiff might have filed a late
notice-of-claim has expired; and (2) even if the City
were named as a defendant, plaintiff has failed to allege
that a custom, practice or policy of the City caused
a Constitutional violation, a prerequisite for municipal
liability under 42 U.S.C. § 1983. Therefore, defendants
assert, plaintiff's complaint, even if amended, could not
withstand either a motion to dismiss or one for summary
judgment.

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1

Green v. New York City Dept. of Correction, Not Reported in F.Supp.2d (1999)
1999 WL 4961

I. Notice–of–Claim
*2 Defendants' reliance upon plaintiff's failure to file
a notice-of-claim timely, in support of their contention
that permitting plaintiff to amend his complaint would be
futile, is misplaced. The notice-of-claim provisions found
in New York's General Municipal Law are not applicable
to actions brought in federal district court pursuant to 42
U.S.C. § 1983. See Felder v. Casey, 487 U.S. 131, 140–
141, 108 S.Ct. 2302, 2308 (1988); Day v. Moscow, 955 F.2d
807, 814 (2d Cir.1992). Consequently, the Court finds
that plaintiff's failure to comply with the notice-of-claim
provisions in New York's General Municipal Law should
not bar his attempt to amend his complaint by naming the
City as a defendant.

II. City as Defendant
Fed.R.Civ.P. 19(a), in its most pertinent part, informs that
“[a] person who is subject to service of process and whose
joinder will not deprive the court of jurisdiction over the
subject matter of the action shall be joined as a party in the
action if (1) in the person's absence complete relief cannot
be accorded among those already parties....”
In the case at bar, plaintiff seeks to name the City as
a defendant because he determined, after initiating this
action, that the City's Department of Correction is not a
suable entity. 1 The court's jurisdiction over the subject
matter of this action will not be jeopardized by making
the City a defendant. Moreover, the applicable provision
of the City's Charter, Ch. 17, § 396, makes clear that
if plaintiff wishes to recover damages for the alleged
unlawful conduct recited in his complaint, he cannot do
so unless the City is a party to the action. See Adams v.
Galletta, 966 F.Supp. 210, 212 (S.D.N.Y.1997)(collecting
cases). Therefore, complete relief could not be accorded
among those already parties in the absence of the City.
Accordingly, making the City a party to this action
appears reasonable and appropriate.
1

New York City Charter Ch. 17, § 396 provides that
“[a]ll actions and proceedings for the recovery of
penalties for the violation of any law shall be brought
in the name of the City of New York and not in that of
any agency, except where otherwise provided by law.”

Defendants also argue that plaintiff's request to amend his
pleadings, by substituting the City as a defendant, would
be futile because plaintiff has not alleged, as required by

the Supreme Court in Monell v. Dep't of Social Services,
436 U.S. 658, 690–91, 98 S.Ct. 2018, 2035–36 (1978), that
the City, through its customs, practices or policies, caused
plaintiff to suffer any deprivation of Constitutional rights.
Defendants are wrong.
A complaint drafted by a pro se litigant, like plaintiff, must
be construed liberally and “ ‘however inartfully pleaded,’
must be held to ‘less stringent standards than formal
pleadings drafted by lawyers,” ’ Estelle v. Gamble, 429
U.S. 97, 106, 97 S.Ct. 285, 292 (1976)(quoting Haines v.
Kerner, 404 U.S. 519, 92 S.Ct. 594 [1972] ).
At paragraph IV of plaintiff's proposed amended
complaint, he alleges that the Department of Correction
does not have an established appeal procedure for inmates
who are aggrieved by disciplinary determinations. As a
consequence, plaintiff maintains that his Constitutional
right to due process was denied because he received
a 30–day penalty, after being accused of committing
an infraction, and had no appellate avenue to pursue
to challenge the imposition of the penalty. In essence,
plaintiff is alleging that the City's practice or custom
of denying inmates a means by which to obtain
review of adverse Department of Correction disciplinary
determinations is violative of due process. The Court finds
that such a claim satisfies the requirements of Monell.
Therefore, permitting plaintiff to name the City as a
defendant, so that he might amend his complaint to
challenge the constitutionally infirm practice he alleges
exists, would not be futile.

III. Supplemental Jurisdiction
*3 “[I]n any civil action of which the district courts
have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are
so related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy under Article III of the United States
Constitution.”

28 U.S.C. § 1367(a)
A federal district court has broad discretion to decide
whether to exercise its supplemental jurisdiction over state
claims. See United Mine Workers of America v. Gibbs, 383
U.S. 715, 726–28, 86 S.Ct. 1130, 1139–40 (1966); Seabrook
v. Jacobson, 153 F.3d 70, 73 (2d Cir.1998); Fay v. South
Colonie Central, 802 F.2d 21, 34 (2d Cir.1986). Generally,

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2

Green v. New York City Dept. of Correction, Not Reported in F.Supp.2d (1999)
1999 WL 4961

when a state law claim and a federal claim derive from
a common nucleus of operative fact, and thus form the
same case or controversy under Article III of the United
States Constitution, and where it would be expected that
the claims would be tried together in the same judicial
proceeding, it is appropriate for the court to exercise its
supplemental jurisdiction over the state law claim. The
exercise of the court's supplemental jurisdiction, under
such circumstances, is appropriate because it is an efficient
and economical use of judicial resources. See United Mine
Workers, 383 U.S. at 725–26, 86 S.Ct. at 1138–39 (1966).
However, where there exists compelling reasons which
militate against the court exercising its supplemental
jurisdiction, 28 U.S.C. § 1367(c)(4) informs that the court
may decline to do so.
In the instant case, plaintiff's action is brought pursuant
to 42 U.S.C. § 1983, a law of the United States. Federal
district courts have original jurisdiction of all civil actions
arising under, inter alia, the laws of the United States. See
28 U.S.C. § 1331. As a result, plaintiff's state law claims
may be heard under the court's supplemental jurisdiction
if they are sufficiently related to the federal claim(s)
plaintiff has asserted and do not come within any of the
exceptions enumerated in 28 U.S.C. § 1367(c).
Plaintiff seeks to have the Court entertain state law
claims arising under New York “General Municipal
Law § 50–j, etc.,” and Article I, §§ 6, 11, “etc.” of the
New York Constitution. 2 The New York statutory and
constitutional provisions are addressed below.
2

Plaintiff's use of the abbreviation for the words et
cetera after referring to New York General Municipal
Law 50–j and to the provisions of New York's
Constitution does not indicate to the Court, with
sufficient clarity, what other specific provisions of
New York's General Municipal Law or New York's
Constitution plaintiff wishes the Court to consider.
Absent such clarity, the Court has determined to limit
its analysis to the specific statute and constitutional
provisions cited by plaintiff.

A. New York General Municipal Law § 50–j
General Municipal Law § 50–j, entitled “Civil actions
against correction employees' is, by its express language,
inapplicable to the City of New York. See New York
General Municipal Law § 50–j(9). 3 Consequently, there

is no basis for interjecting claims based on that law into
this action.
3

Two sections of New York's General Municipal
Law are denominated 50–j. One provision addresses
the liability of police officers for negligence in the
performance of their duties. The other, referenced
above, pertains to correction employees. Given the
allegations in the instant case, the Court has focused
on the provision germane to correction employees
only.

B. The New York Constitution
1. Article I, § 6
Article I, § 6 of the New York Constitution, among
other things, states that “[n]o person shall be deprived
of life, liberty or property without due process of law.”
The subject matter of this action is plaintiff's claim that
defendants, through their inmate infraction adjudicatory
procedure, violated his right to due process because their
adjudicatory procedure has no appellate component. 4
Inasmuch as the proposed amendment to plaintiff's
complaint—a due process claim under Article I, § 6 of the
New York Constitution—derives from the same nucleus
of operative fact as does his federal claim under 42 U.S.C.
§ 1983, and since these claims could be tried together,
the exercise of the court's supplemental jurisdiction,
with respect to this proposed amendment to plaintiff's
complaint, seems appropriate; but it is not.
4

Plaintiff has proposed that his complaint be amended
to permit him to assert a due process claim
under Amendment Fourteen to the United States
Constitution. Defendants do not oppose such an
amendment to the pleadings; therefore, that portion
of plaintiff's motion is granted. In like manner,
defendants have not opposed plaintiff's request
to withdraw his claim for mental anguish; that
application is also granted.

*4 While similar language is found in Article I, § 6 of
the New York Constitution and in Amendment Fourteen
to the United States Constitution, the language of these
two constitutions' provisions is not identical. Moreover,
New York courts have interpreted Article I, § 6 of the
New York Constitution more broadly than federal courts
have interpreted the federal counterpart. See Under 21 v.
City of New York, 65 N.Y.2d 344, 360, 492 N.Y.S.2d 522,
529, n. 6 (1985). Given this fact, and the requirement that

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3

Green v. New York City Dept. of Correction, Not Reported in F.Supp.2d (1999)
1999 WL 4961

the Court be mindful of federal-state comity concerns, it
is preferable that any interpretation of this provision of
New York's constitution be left to the New York courts. It
would be imprudent for the Court to undertake to prepare
an exegesis on New York State constitutional law when
such an endeavor is unnecessary to the resolution of the
claims made in this action. The Court finds that this is a
compelling reason to refuse to permit plaintiff to amend
his complaint to assert a claim under Article I, § 6 of the
New York Constitution. The Court also finds that this
is a compelling reason to decline to entertain that claim
under the court's supplemental jurisdiction. See 28 U.S.C.
§ 1367(c)(4).

2. Article I, § 11
Article I, § 11 of the New York Constitution assures
all persons that they will not be denied equal protection
under the laws of New York and proscribes discrimination
in civil rights. Unlike Article I, § 6 of the New York
Constitution, discussed above, this provision of the
state's constitution is no broader in coverage than the
federal provision and was merely designed to embody
in the state's constitution the provisions of the Federal
Constitution. See Under 21, 65 N.Y.2d at 359, 492
N.Y.S.2d at 528, n. 6. Therefore, the same analysis that
will be undertaken when plaintiff's equal protection claim
under the Fourteenth Amendment to the United States
Constitution is considered, will be undertaken with respect
to plaintiff's parallel state constitutional claim. Under
these circumstances, the Court finds that it is appropriate
to permit plaintiff to amend his complaint to assert this
End of Document

state constitutional claim and to entertain that claim
under the court's supplemental jurisdiction authority.

CONCLUSION
For the reasons outlined above, plaintiff's application to
amend his complaint to substitute the City for Defendant
New York City Department of Correction is granted.
Plaintiff's applications to withdraw his claim for mental
anguish and to assert a claim under the Fourteenth
Amendment to the United States Constitution, having
been made without opposition from the defendants, are
granted. Plaintiff's request that the Court invoke its
supplemental jurisdiction and entertain claims based upon
New York General Municipal law § 50–j and Article I, §§
6 and 11 of the New York Constitution is granted to the
extent that plaintiff may amend his pleadings to assert a
claim under Article I, § 11 of the New York Constitution.
In all other respects, plaintiff's application that the Court
exercise supplemental jurisdiction over state law claims is
denied.
*5 On or before January 25, 1999, plaintiff shall serve
and file an amended complaint consistent with this
Memorandum and Order.

All Citations
Not Reported in F.Supp.2d, 1999 WL 4961

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4

Tulloch v. Erie County Holding Center, Not Reported in F.Supp.2d (2010)
2010 WL 2609054

2010 WL 2609054
Only the Westlaw citation is currently available.
This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
United States District Court,
W.D. New York.
Clifford TULLOCH, Plaintiff,
v.
ERIE COUNTY HOLDING CENTER, Defendant.
No. 10–CV–0207S.
|
June 24, 2010.
Attorneys and Law Firms
Clifford Tulloch, Buffalo, NY, pro se.

DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
INTRODUCTION
*1 Plaintiff, Clifford Tulloch, who, at the time the
complaint was filed, appears to have been a pre-trial
detainee at the Erie County Holding Center, has filed this
pro se action seeking relief under 42 U.S.C. § 1983 (Docket
No. 1) and has both requested permission to proceed in
forma pauperis and filed a signed Authorization (Docket
No. 2). Plaintiff also seeks the appointment of counsel,
which at this time is denied as premature. 1
1

A more fully developed record will be necessary
before the Court can determine whether plaintiff's
chances of success warrant the appointment of
counsel. Therefore, plaintiff's application is denied
without prejudice to its renewal at such time as the
existence of a potentially meritorious claim may be
demonstrated, See Hendricks v. Coughlin, 114 F.3d
390, 392 (2d Cir.1997) (when determining whether
to appoint counsel, the Court must first look to the
“likelihood of merit” of the underlying dispute).

Plaintiff claims that the defendants, Erie County Holding
Center, Timothy Howard, Sheriff of the County of Erie,

and Christopher Collins, County Executive of the County
of Erie, violated his rights by denying his access to the
law library, using excessive force against him, and forcing
him to live in unsanitary conditions. For the reasons
discussed below, plaintiffs request to proceed as a poor
person is granted, several of plaintiffs claims are hereby
dismissed, some of the claims are sufficient as pled, and
others must be dismissed under 28 U.S.C. § 1915(e)(2)
(B) unless plaintiff files an amended complaint as directed
below.

DISCUSSION
Because plaintiff has met the statutory requirements of
28 U.S.C. § 1915(a) and filed an Authorization with
respect to this action, plaintiff is granted permission
to proceed in forma pauperis. Section 1915(e)(2)(B) of
28 U.S.C. provides that the Court shall dismiss a case
in which in forma pauperis status has been granted if
the Court determines that the action (i) is frivolous or
malicious; (ii) fails to state a claim upon which relief
may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief. In addition,
28 U.S.C. § 1915A(a) requires the Court to conduct
an initial screening of “a complaint in a civil action in
which a prisoner seeks redress from a governmental entity
or officer or employee of a governmental entity,” id.,
regardless of whether or not the inmate has sought in
forma pauperis status under 28 U.S.C. § 1915.
In evaluating the complaint, the Court must accept as true
all of the factual allegations and must draw all inferences
in plaintiff's favor. See Larkin v. Savage, 318 F.3d 138,
139 (2d Cir.2003) (per curiam); King v. Simpson, 189 F.3d
284, 287 (2d Cir.1999). Moreover, “a court is obliged
to construe [pro se ] pleadings liberally, particularly
when they allege civil rights violations.” McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir.2004); and see
Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998).
Nevertheless, even pleadings submitted pro se must meet
the notice requirements of Rule 8 of the Federal Rules
of Civil Procedure. Wynder v. McMahon, 360 F.3d 73
(2d Cir.2004). “Specific facts are not necessary,” and
the plaintiff “need only ‘give the defendant fair notice
of what the ... claim is and the grounds upon which it
rests.’ ” Erickson v. Padus, 551 U.S. 89, 93, 127 S.Ct.
2197, 167 L.Ed.2d 1081 (2007) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955,

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1

Tulloch v. Erie County Holding Center, Not Reported in F.Supp.2d (2010)
2010 WL 2609054

167 L.Ed.2d 929 (2007)) (internal quotation marks and
citation omitted); see also Boykin v. Keycorp, 521 F.3d 202,
213 (2d Cir.2008) (discussing pleading standard in pro se
cases after Twombly ).
*2 Generally, the Court will afford a pro se plaintiff an
opportunity to amend or to be heard prior to dismissal
“ ‘unless the court can rule out any possibility, however
unlikely it might be, that an amended complaint would
succeed in stating a claim.’ ” Abbas, 480 F.3d at 639
(quoting Gomez v. USAA Federal Savings Bank, 171 F.3d
794, 796 (2d Cir.1999) (per curiam )).

A. MUNICIPAL LIABILITY
Plaintiff herein names as defendants the Erie County
Holding Center, Erie County Sheriff Timothy Howard,
and Erie County Executive Chris Collins. Although
municipalities are considered “persons” for purposes of
42 U.S.C. § 1983, a local government may not be held
liable under § 1983 unless the challenged action was
performed pursuant to a municipal policy or custom.
Monell v. New York City Dept. of Social Services, 436
U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Municipalities are not subject to § 1983 liability solely on
the basis of a respondeat superior theory. Collins v. City
of Harker Heights, 503 U.S. 115, 121, 112 S.Ct. 1061,
117 L.Ed.2d 261 (1992); Monell, 436 U.S. at 694. To
hold a municipality liable in a § 1983 action, a plaintiff
is required to plead and prove three elements: (1) an
official custom or policy that (2) causes the plaintiff to
be subjected to (3) a denial of a constitutional right.
Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995)
(citations and quotations omitted); see Gottlieb v. County
of Orange, 84 F.3d 511, 518 (2d Cir.1996) (“In order to
establish the liability of a municipality in an action under
§ 1983 for unconstitutional acts by a municipal employee
below the policymaking level, a plaintiff must show that
the violation of his constitutional rights resulted from a
municipal custom or policy.”).
The claims against the Erie County Holding Center must
be dismissed because (1) the Erie County Holding Center
is merely an arm of the County, and does not have a
legal identity separate and apart from the County and
thus cannot be sued, see Brockport v. County of Monroe
Pure Waters Div., 75 A.D.2d 483, 486, 429 N.Y.S.2d 931
(4th Dept.1980), aff'd 54 N.Y.2d 678, 442 N.Y.S.2d 510,
425 N.E.2d 898 (1981); Loria v. Town of Irondequoit, 775
F.Supp. 599, 606 (W.D.N.Y.1990), and (2) there are no

allegations that the challenged actions were performed
pursuant to a municipal policy or custom of the County.
Monell, 436 U.S. at 694. Accordingly, the claims against
the Erie County Holding Center must be dismissed in
their entirety but, as discussed below, plaintiff will be
allowed the opportunity to amend the complaint to name
the County of Erie as a defendant and set forth facts which
give rise to a claim of municipal liability under Monell.
To the extent that plaintiff sues the Sheriff and County
Executive in their official capacities, plaintiff's claims
are equivalent to a claim against the municipality itself,
see Alger v. County of Albany, 489 F.Supp.2d 155, 165
(N.D.N.Y.2006) (“A claim against an individual in her
official capacity is nothing more than a claim against
the municipality itself), and therefore said claims must
be dismissed because plaintiff has not alleged that the
constitutional violations occurred pursuant to a policy of
custom of the County of Erie. See Gottlieb, 84 F.3d at 518.
To the extent plaintiff has sued the Sheriff and County
Executive, in their individual capacities, 2 he has set forth
no allegations regarding their personal involvement in
the alleged constitutional violations nor has he made any
allegations that could support a claim that they created
a County policy or custom that led to the constitutional
violations alleged herein. See Colon v. Coughlin, 58 F.3d
865, 874 (2d Cir.1995).
2

The complaint indicates that the defendants are being
sued in their official capacities but the Court will
liberally construe the complaint as alleging claims
against the defendants in both their individual and
official capacities. Graham v. Henderson, 89 F.3d 75,
79 (2d Cir.1996) (“the pleadings of a pro se plaintiff
must be read liberally and should be interpreted ‘to
raise the strongest arguments that they could suggest’
”) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d
Cir.1994)).

*3 Plaintiff appears to claim that these defendants are
liable solely because they hold the positions of Sheriff
and County Executive. It is well-settled, however, that an
individual may not be held personally responsible merely
because he is in a position of authority. Sealey v. Giltner,
116 F.3d 47, 51 (2d Cir.1997); see also Colon, 58 F.3d at
874 (“The bare fact that [the defendant] occupies a high
position in the New York prison hierarchy is insufficient
to sustain [plaintiff's] claim”). Thus, plaintiff's allegations
against defendants Howard and Collins fail to state a §
1983 claim against them. Accordingly, plaintiff's claims

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2010 WL 2609054

against defendants Sheriff Howard and County Executive
Collins are dismissed with prejudice. Any opportunity
to amend the claims against them would be futile and
therefore leave to amend the claims against Howard and
Collins is denied. Foman v. Davis, 371 U.S. 178, 182,
83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Jones v. New York
State Div. of Military & Naval Affairs, 166 F.3d 45, 50
(2d Cir.1999) (holding that “a district court may properly
deny leave when amendment would be futile.”)

B. PLAINTIFF'S CLAIM OF EXCESSIVE FORCE
Plaintiff alleges that when he refused to go to a City
Court hearing, Sgt. Webster and Sgt. Evens, deputies
from the Erie County Holding Center, beat him and
caused an injury to his eye. He further alleges that the
deputies refused to address his injury as he was returned
from court to the Holding Center. He was taken to
Erie County Medical Center the next morning, where he
received treatment for a scratched cornea. (Docket No.
1, Complaint, Section 5A, Second Claim, at 6.) While the
complaint does not name Sgt. Webster and Sgt. Evens as
defendants, it does allege that they assaulted him. 3
3

The Court applies the same standard of law to
excessive force claims brought by pretrial detainees,
which arise underthe Fourteenth Amendment
ratherthan the Eighth, as it does to claims brought by
convicted incarcerated inmates. See United States v.
Walsh, 194 F.3d 37, 50 (2d Cir.1999). A correctional
officer's use of force violates the Eighth Amendment
when two requirements are met: the use of force “must
be, objectively, sufficiently serious,” and “the prison
official involved must have a sufficiently culpable
state of mind.” Bod die v. Schnieder, 105 F.3d 857, 861
(2d Cir.1997) (internal quotation marks and citations
omitted).

As discussed above, the Erie County Holding Center,
Sheriff Howard, and County Executive Collins cannot
be held liable for this claim both because there are no
allegations that this assault occurred pursuant to a policy
or custom of the County of Erie, see Monell, 436 U.S.
at 694, and because there are no allegations that Howard
and Collins were personally involved in the assault, Colon,
58 F.3d at 874. Based on its evaluation of the complaint,
the Court finds that the caption of plaintiff's complaint
should be amended to include as defendants Sgt. Webster
and Sgt. Evans and, as thus amended, plaintiff's complaint
may proceed against Webster and Evans with respect to

the claimed use of excessive force. 4 (Complaint, Section
5A, Second Claim, at 6.)
4

See, e.g., McEachin v. McGuiniss, 357 F.3d 197,
200 (2d Cir.2004) (“We have frequently reiterated
that ‘[s]ua sponte dismissals of pro se prisoner
petitions which contain non-frivolous claims without
requiring service upon respondents or granting leave
to amend is disfavored by this Court.’ ”) (quoting
Moorish Sci. Temple of Am. Inc. v. Smith, 693 F.2d
987, 990 (2d Cir.1982); Benitez v. Wolff, 907 F.2d
1293, 1295 (2d Cir.1990) (per curiam ) (“Sua sponte
dismissal of a pro se complaint prior to service of
process is a draconian device, which is warranted
only when the complaint lacks an arguable basis
in law or fact. Where a colorable claim is made
out, dismissal is improper prior to service of process
and the defendants' answer.”) (citations and internal
quotations omitted)).

C. DENIAL OF ACCESS TO THE COURTS
As noted, plaintiff alleges that while he was in
administrative segregation at the Holding Center, he
was not allowed access to the law library. (Complaint,
¶ 5A, First Claim, at 5.) While it is true that under
the Constitution a correctional facility must provide an
inmate with meaningful access to the courts, Bounds v.
Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72
(1977), the mere limitation of access to legal materials,
without more, does not state a constitutional claim, as
“ ‘the Constitution requires no more than reasonable
access to the courts.’ ” Jermosen v. Coughlin, 877 F.Supp.
864, 871 (S.D.N.Y.1995) (quoting Pickett v. Schaefer,
503 F.Supp. 27, 28 (S.D.N.Y.1980)). Moreover, in order
to state a constitutional claim, a plaintiff must make a
showing that he has suffered, or will imminently suffer,
actual harm; that is, that he was “hindered [in] his efforts
to pursue a legal claim.” Lewis v. Casey, 518 U.S. 343, 351,
116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Accord Morello v.
James, 810 F.2d 344, 347 (2d Cir.1987).
*4 Thus, plaintiff must show that he has suffered an
actual injury traceable to the challenged conduct of prison
officials. A plaintiff has not shown actual injury unless he
shows that a “nonfrivolous legal claim had been frustrated
or was being impeded” due to the actions of prison
officials. Lewis, 518 U.S. at 351–52. In the complaint,
plaintiff claims that his placement in administrative
segregation, and resulting restrictions, denied his access to
the Holding Center's law library. (Docket No. 1). This,

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however, in-and-of itself does not state a claim under the
First Amendment of a denial of access to the courts. See
Lewis, 518 U.S. at 351. Plaintiff, however, will be allowed
an opportunity to amend his complaint, to show that the
denial of access to the law library led to some actual injury
—i.e., a “nonfrivolous legal claim had been frustrated or
was being impeded” due to his not be permitted access
to the law library. Id., at 351–52. Plaintiff may name the
County of Erie as a defendant to this claim but only if
he can allege sufficient facts that the denial of access to
the courts through administrative segregation restrictions
occurred pursuant to a municipal policy or custom. See
Monell, 436 U.S. at 694. Plaintiff may also name as
defendants in the amended complaint those individuals,
if any, whom he claims were personally involved in the
alleged denial.

D. DENIAL OF SANITARY LIVING
CONDITIONS
Plaintiff also alleges that he was forced to live in
unsanitary living conditions while at the Holding Center,
which included flaky paint on the walls and shower ceiling,
lack of water, linens that were not regularly changed,
uncomfortable mattresses, and cell walls, floors, and
ceilings that were soiled with food and human waste.
(Docket No. 1). Because plaintiff was a pre-trial detainee
at the time of the events alleged in the complaint, his
conditions of confinement claim arise under the due
process clause of the Fourteenth Amendment, not the
Eight Amendment's prohibition against cruel and unusual
punishment. “As a general rule, conditions of confinement
imposed in pretrial detention do not give rise to a violation
of a prisoner's due process rights unless they are punitive.”
Palacio v. Department of Corrections, 345 Fed.Appx. 668,
2009 WL 2923120, at * 1 (2d Cir. Sept.14, 2009) (citing
Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60
L.Ed.2d 447 (1979) (“In evaluating the constitutionality
of conditions or restrictions of pretrial detention that
implicate only the protection against deprivation of liberty
without due process of law, we think that the proper
inquiry is whether those conditions amount to punishment
of the detainee.”); see also Lareau v. Manson, 651 F.2d
96, 102 (2d Cir.1981) (the “constitutional standard by
which the legality of conditions of confinement for pretrial
detainees is to be measured ... is whether the conditions
amount to ‘punishment’ without due process in violation
of the Fourteenth Amendment.”) (citing Bell, 441 U.S. at
536–38)). “Absent a showing of express intent to punish,
the determination generally will turn on whether an

alternative purpose to which the restriction may rationally
be connected is assignable for it, and whether it appears
excessive in relation to the alternative purpose assigned to
it.” Lareau, 651 F.2d at 103 (internal quotation marks and
alterations omitted).
*5 Plaintiff's complaint does not state a claim of denial of
due process based on the allegation that he was subjected
to unconstitutional conditions at the Holding Center. See
Rush v. Astacio, 159 F.3d 1348, 1998 WL 480751, at *1
(Table) (2d Cir. July 31, 1999) (Unpublished Disposition)
(“[Plaintiff] has not alleged that [defendant]'s refusal to
remove him from the cold room ... was motivated by an
intent to punish. Absent such an allegation ..., we need
determine only whether there could have been a legitimate
governmental purpose justifying defendant's behavior and
whether such behavior was excessive in light of this
rationale.) There are no allegations that the “hardships,”
if any, caused by the alleged unsanitary conditions were
substantial or that they caused any injuries to plaintiff.
Simple unpleasantness does not state a claim of a violation
of a pretrial detainee's due process rights. Rush, 1998
WL 480751, at *2. Plaintiff will, however, be allowed
an opportunity to amend his complaint to allege facts
which show that the living conditions of the Erie County
Holding Center amounted to “punishment” and were
thusunconstitutional. See Davidson v. Flynn, 32 F.3d 27,
31 (2d Cir.1994) (“Sparse pleadings by a pro se litigant
unfamiliar with the requirements of the legal system may
be sufficient at least to permit the plaintiff to amend his
complaint to state a cause of action”); Fed.R.Civ.P. 15(a)
(leave to amend “shall be freely given when justice so
requires”). While plaintiff may wish to name the County
of Erie as a defendant to this claim, if he does so he
must allege facts to support a claim that the alleged due
process violation occurred pursuant to a municipal policy
or custom. See Monell, 436 U.S. at 694. He may also
name as defendants any individual whom he can claim was
personally involved in the unsanitary living conditions.

CONCLUSION
Because plaintiff has met the statutory requirements of 28
U.S.C. § 1915(a) and filed an Authorization with respect
to the filing fee, his request to proceed in forma pauperis is
granted. For the reasons set forth above, plaintiff's claims
against Timothy Howard, Christopher Collins, and the
Erie County Holding Center are dismissed with prejudice.

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In addition, plaintiff's claims of denial of access to the
courts and denial of sanitary living conditions must be
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A unless he files an amended complaint by July 22,
2010, which includes the necessary allegations regarding
these two claims as directed above and in a manner that
complies with Rules 8 and 10 of the Federal Rules of Civil
Procedure. Plaintiff's claim of excessive force may proceed
against Sgt. Webster and Sgt. Evens only, and the Clerk of
the Court shall amend the caption herein to include Sgt.
Webster and Sgt. Evans as defendants.
Plaintiff is advised that an amended complaint is intended
to completely replace the prior complaint in the action,
and thus it “renders [any prior complaint] of no legal
effect.” International Controls Corp. v. Vesco, 556 F.2d
665, 668 (2d Cir.1977), cert. denied sub nom., Vesco &
Co., Inc. v. International Controls Corp., 434 U.S. 1014,
98 S.Ct. 730, 54 L.Ed.2d 758 (1978); see also Shields v.
Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994).
Therefore, plaintiff's amended complaint must include all
of the allegations against each of the defendants against
whom the case is going forward so that the amended
complaint may stand alone as the sole complaint in this
action which the defendants must answer.

Holding Center are dismissed with prejudice and the Clerk
of the Court is directed to terminate these defendants as
parties to this action;
FURTHER, the Clerk of the Court is directed to amend
the caption to include as defendants “Sgt. Webster” and
“Sgt. Evans;”
FURTHER, that plaintiff is granted leave to file an
amended complaint regarding his claims of denial of
access to the courts and denial of sanitary living conditions
as directed above by July 22, 2010;
FURTHER, that the Clerk of the Court is directed to
send to plaintiff with this order a copy of the original
complaint, a blank § 1983 complaint form, and the
instructions for preparing an amended complaint;
FURTHER, that in the event plaintiff fails to file an
amended complaint as directed above by July 22, 2010,
all the claims set forth in the complaint, except the assault
claim against Webster and Evans will be dismissed with
prejudice,

*6 Plaintiff is forewarned that if he fails to file an
amended complaint as directed, the claims related to the
denial of access to the law library and the unsanitary
living conditions at the Holding Center will be dismissed
with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and §
1915A, and service will be made of only the excessive force
claim against Webster and Evans.

FURTHER, that in the event plaintiff fails to file an
amended complaint as directed above by July 22, 2010, the
Clerk of the Court is directed to cause the United States
Marshal to serve copies of the Summons, Complaint,
and this Order regarding the excessive force claim upon
defendants Webster and Evans (Complaint, ¶ 5A, Second
Claim, at 6), without plaintiff's payment therefor, unpaid
fees to be recoverable if this action terminates by monetary
award in plaintiff's favor; and

ORDER

FURTHER, upon service of the complaint defendants are
directed, pursuant to 42 U.S.C. § 1997(g)(2), to answer the
complaint.

IT HEREBY IS ORDERED, that plaintiff's motion to
proceed in forma pauperis is granted and his motion for
appointment of counsel is denied without prejudice;
FURTHER, that plaintiff's claims against Timothy
Howard, Christopher Collins, and the Erie County
End of Document

SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2010 WL 2609054
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5

Flynn v. Ward, Not Reported in F.Supp.3d (2016)
2016 WL 1357737

2016 WL 1357737
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Bruce Flynn, Plaintiff,
v.
Joe Ward et al., Defendants.

with the utmost leniency. See, e.g., Haines v. Kerner,
404 U.S. 519, 521 (1972) (holding that a pro se litigant's
complaint is to be held “to a less stringent standards than
formal pleadings drafted by lawyers”).

III. December Order and Amended Complaint 1
1
The amended complaint contains approximately 329
pages of exhibits. See Dkt. Nos. 20-1 through 20-7.
The Court will consider the amended complaint as
well as any documents attached as exhibits. See
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d
42, 47 (2d Cir. 1991) (holding that the complaint is
deemed to include any written instrument attached
to it as an exhibit or any statements or documents
incorporated in it by reference).

9:15-CV-1028
|
Signed 04/05/2016
Attorneys and Law Firms
BRUCE FLYNN, 10-A-1558, Mid-State Correctional
Facility, P. O. Box 2500, Marcy, New York 13403,
Plaintiff, pro se.

AMENDED DECISION AND ORDER
GARY L. SHARPE Senior United States District Judge
I. INTRODUCTION
Pro se plaintiff Bruce Flynn commenced this civil rights
action asserting claims arising out of his confinement
in the custody of the New York State Department of
Corrections and Community Supervision (“DOCCS”).
Dkt. No. 1 (“Compl.”). In a Decision and Order
filed December 4, 2015 (“December Order”), the Court
reviewed the complaint in accordance with 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A, and determined
that the complaint failed to state a claim upon which
relief could be granted and, therefore, was subject to
dismissal. Dkt. No. 11. In light of his pro se status, plaintiff
was afforded an opportunity to submit an amended
complaint. See Dkt. No. 11 at 18. Currently before the
Court is plaintiff's amended complaint. Dkt. No. 20 (“Am.
Compl.”).

Plaintiff, an inmate currently being held at MidState Correctional Facility (“Mid-State C.F.”), filed
a complaint asserting claims against Joe Ward
(“Ward”), Superintendent at Mid-State C.F. and Lief
Wellenstein (“Wellenstein”), Correctional Officer/Law
Library Supervisor at Mid-State C.F. See generally
Compl. In the December Order, the Court dismissed the
following, without prejudice: (1) claims that defendants
denied plaintiff his right to access to the courts in
violation of the First Amendment; (2) claims that
Wellenstein retaliated against plaintiff in violation of
his First Amendment rights; (3) claims that defendants
violated DOCCS Directives and the Facility Operations
Manual; (4) claims related to plaintiff's FOIL request; (5)
supervisory claims against Ward; and (6) state law claims.
See Dkt. No. 11.
In the amended complaint, plaintiff names four new
defendants: L. Goppert (“Goppert”), Security Captain at
Mid-State C.F.; Digert (“Digert”), Correctional Officer
at Mid-State C.F.; Carpenter (“Carpenter”), Correctional
Sergeant at Mid-State C.F.; and Tourtelot (“Tourtelot”),
Nurse at Mid-State C.F. 2 See Am. Compl. at 2, 3.
2

II. LEGAL STANDARD
The legal standard governing the dismissal of a pleading
for failure to state a claim pursuant to 28 U.S.C. § 1915(e)
(2)(B) and 28 U.S.C. § 1915A w as discussed at length
in the December Order and it will not be restated in this
Decision and Order. See Dkt. No. 11 at 2-3. The Court will
construe the allegations in plaintiff's amended complaint

The Clerk of the Court is directed to add these
defendants to the docket report for this action.

*2 On November 15, 2010, plaintiff was transferred
to DOCCS custody to serve a ten year term for
burglary and criminal use of a firearm. See Am. Compl.
at 9. At the relevant time, plaintiff was confined in
the Long Term Protective Custody (“LTPC”) Unit at
Mid-State C.F. 3 See Am. Compl. In November 2010,

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2016 WL 1357737

the DOCCS Directive (4833) regarding Law Library
Services provided, in pertinent part:
Cell Study Services: Inmates prohibited by their
confinement status from visiting the Law Library
shall be allowed to study Law Library materials in
their cells and obtain legal services normally available
to general population inmates.
Such inmates may request, in writing, a maximum
of two items per day and these will be delivered, if
available, within 24 hours of receipt of the request.
Inmates may retain said legal materials for a period
of not less than 16 hours nor more than 24 hours.
Dkt. No. 20-1 at 5.
3

The LTPC Unit is part of the Special Housing Unit
(“SHU”). See Am. Compl. at 9.

Under the Cell Study Program, requests for legal materials
are restricted to two per day. See Am. Compl. at 15. As a
result, inmates in protective custody often incur a two or
three month delay in obtaining material. See id.
On October 3, 2011, Captain Admik 4 issued a
memorandum to the security staff at Mid-State C.F.
directing that inmates in the LTPC Unit be permitted
physical access to the law library. 5 See Am. Compl. at 9;
Dkt. No. 20-1 at 2.
4
5

c. SHU inmates will only be allowed to have two
(2) legal research resources in their possession at
a time. Pick-up and delivery of legal materials
will be made on a daily basis, Monday through
Sunday.
Dkt. No. 20-1 at 17. 6
6

In October 2014, Wellenstein was designated as the law
library officer. See Am. Compl. at 11. In November
2014 and December 2014, plaintiff had several arguments
with Wellenstein over access to reference books available
for SHU inmates, copies of legal work and printing
court cases. See id. Wellenstein also insisted that plaintiff
leave his legal work in the library. See id. One week
after an argument with Wellenstein, plaintiff received a
Tier II misbehavior report from C.O. Jordan (“Jordan”)
involving a razor. 7 See Am. Compl. at 12, 13; Dkt.
No. 20-7 at 3. After a disciplinary hearing, plaintiff
was sentenced to thirty days in keeplock and a loss of
privileges including phones, packages, commissary, and
recreation. 8 See id. Plaintiff served the entire sentence and
appealed the determ ination. 9 See Am. Compl. at 13.
7

Captain Admik is not a defendant herein.
The memorandum was copied to Superintendent
Ward. See Dkt. No. 20-1 at 2.

On September 5, 2014, the Inmate Law Library
Procedures, as outlined in the Mid-State C.F. Facility
Operations Manual (No. 21.04), provided, in relevant
part:
3. Inmates in SHU areas may request, in writing, legal
assistance from the Law Library.
a. All requests for assistance must be sent to the
Law Library Officer via facility mail and each
request should document what kind of service is
needed.
...

Plaintiff refers to this as the “Cell Study Program.”
See Am. Compl. at 15.

8
9

Jordan is not a named defendant in this action. The
amended complaint does not contain facts related
to the report and the report was not annexed as an
exhibit to the amended complaint.
The amended complaint lacks any facts related to the
hearing.
The amended complaint does not include information
related to when or to whom plaintiff filed his appeal.

*3 On January 6, 2015, plaintiff filed a grievance
claiming that Wellenstein interfered with plaintiff's access
to the courts when he refused to perform “word” and
“key number searches.” See Am. Compl. at 13; Dkt.
No. 20-3 at 11. As a result of Wellenstein's refusal to
perform the searches, plaintiff had to delay filing a habeas
corpus petition and writ of error coram nobis while
he performed manual research on “outdated” digests.
See id. On January 20, 2015, plaintiff forwarded a
memorandum to Carpenter, the Law Library Supervisor,
advising Carpenter that the stapler in the law library was

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2016 WL 1357737

inoperable and asked for a replacement. See Dkt. No. 20-4
at 4.
In February 2015, plaintiff filed two grievances against
Wellenstein claiming that Wellenstein refused to make
copies of legal documents. See Dkt. No. 20-3 at 8, 10.
On March 5, 2015, Goppert issued a Memorandum to
the LTPC Population stating that law library services
would be modified to comply with the Facility Operations
Manual. Dkt. No. 20-1 at 3. LTPC inmates were advised
to request, in writing, legal assistance from the law library
and to forward requests to the law library officer via
facility mail. See id. Consequently, plaintiff was forced
to use the cell study program, controlled by Wellenstein,
which limited his legal research. See Am. Compl. at
15. Wellenstein deliberately and intentionally restricted
access to materials by delivering the wrong materials
or delivering the same material multiple times. See id.
Wellenstein also denied requests for materials on Friday,
Saturday and Sunday. See id. As a result, plaintiff was
prevented from filing his habeas corpus petition and writ
of error coram nobis, which could have reduced his prison
time. See id.
On March 10, 2015, plaintiff filed a grievance against
Wellenstein for failing to provide a list of books available
to SHU inmates and tax forms. See Am. Compl. at
16; Dkt. No. 20-3 at 12. On March 13, 2015, plaintiff
received a misbehavior report, issued by C.O. Miller, for
smoking. 10 See id. As a result of the report, plaintiff was
sentenced to keeplock for six days with a loss of phone
privileges. See id.
10

The report is not part of the exhibits annexed to the
complaint. Miller is not a defendant herein.

On April 5, 2015, plaintiff filed a grievance claiming
that Wellenstein committed fraud, destroyed his property,
refused to provide envelopes, a stapler or hole punch
for legal papers, refused to answer requests for legal
material on the weekends, denied plaintiff legal supplies
and denied plaintiff access to current legal materials.
See Dkt. No. 20-3 at 15-21. On April 28, 2015,
plaintiff filed a grievance against Wellenstein claiming
that Wellenstein was harassing plaintiff and deliberately
destroying plaintiff's documents related to plaintiff's error
coram nobis and habeas corpus petition. See Dkt. No.
20-3 at 34.

On April 30, 2015, Wellenstein entered plaintiff's cell,
without plaintiff's permission and “pushed [plaintiff]
aside.” See Am. Compl. at 17; Dkt. No. 20-3 at 42. On
the same day, plaintiff filed a grievance with respect to the
incident. Plaintiff described the occurrence as follows:
On 4/30/15 after having me sign
for materials through the feed
up port. He said he could smell
smoke. He opened my cell door
and pushed me aside and came
into my cell. Wellenstein looked
around my cell made a couple of
smart remarks then left.
Dkt. No. 20-3 at 42.
On the same day, plaintiff received a misbehavior report
from Wellenstein related to the incident. 11 See Am.
Compl. at 17. As a result of the report, plaintiff was
confined to keeplock for nineteen days with a loss of
privileges. See id.
11

The misbehavior report is not part of the record
herein.

*4 On May 8, 2015, Wellenstein appeared at plaintiff's
cell shouting “threats.” See Am. Compl. at 18. Wellenstein
called plaintiff names and threatened plaintiff with
violence and misbehavior reports. See id. On May 11,
2015, plaintiff field a grievance related to the incident. See
id.; Dkt. No. 20-3 at 44. On May 14, 2015, plaintiff filed a
grievance against Wellenstein for failing to provide books
related to mental health treatment and property rights.
See Am. Compl. at 19; Dkt. No. 20-3 at 46. On the same
day, plaintiff filed a second grievance complaining that he
could not order legal materials on Saturday and Sunday
due to mail restrictions. See Am. Compl. at 19; Dkt. No.
20-3 at 47.
On May 26, 2015, plaintiff sent correspondence to Dr.
Liu (“Liu”) at Mid-State C.F., stating that he asked
defendant, Nurse Practitioner Tourtelot (“Tourtelot”) to
provide plaintiff with his 2013 medications because the
current level of his medication was not strong enough to
calm his nerves and anxiety. 12 See Dkt. No. at 20-6 at 73.
Despite plaintiff's repeated requests, Tourtelot refused to
increase plaintiff's medication. See Am. Compl. at 39.

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12

In September 2012, plaintiff was diagnosed with
schizoaffective disorder, depressed type. See Am.
Compl. at 41-42. Liu is not a defendant herein.

On July 21, 2015, plaintiff filed a grievance against
Wellenstein for refusing to provide plaintiff with
envelopes, intentionally making distorted copies and
tampering with his mail. See Am. Compl. at 19; Dkt. No.
20-6 at 2-3.
On August 1, 2015, plaintiff filed a grievance against
Wellenstein for failing to provide copies of cases. See
Am. Compl. at 20; Dkt. No. 20-6 at 4. On the same
day, plaintiff received two misbehavior reports. The first
report charged plaintiff with violating the rules pertaining
to smoking 13 and the second misbehavior report, from
Wellenstein, charged plaintiff with failing to obey a direct
order. See Am. Compl. at 20; Dkt. No. 20-6 at 5, 6.
On August 7, 2015, plaintiff filed a grievance against
Wellenstein for failing to make copies of legal documents.
See Am. Compl. at 21.; Dkt. No. 20-6 at 7. Plaintiff
claimed that Wellenstein was acting in retaliation for
plaintiff's grievances against him. See id. Ward responded
and denied the grievance noting that plaintiff had not,
“substantiated his claim that he has been the victim of
harassment by staff.” See Dkt. No. 20-6 at 53. On August
17, 2015, plaintiff received a misbehavior report charging
plaintiff with placing a three-way call in violation of
facility phone procedures. 14 See Dkt. No. 20-6 at 8. As
a result of the misbehavior report, plaintiff was confined
in keeplock for eighteen days with a loss of privileges.
See Am. Compl. at 21. On August 20, 2015, plaintiff filed
a grievance complaining that he was being harassed and
threatened by Wellenstein. See id.; Dkt. No. 20-6 at 10.
On August 22, 2015, plaintiff filed a grievance stating
Wellenstein refused to provide large manilla envelopes
for plaintiff to mail his legal work. See id.; Dkt. No.
20-6 at 11. On August 24, 2015, plaintiff received a
misbehavior report from Wellenstein charging plaintiff
with harassment and threats. Dkt. No. 20-6 at 12.
13

14

The name of the officer who reported this violation is
illegible. Dkt. No. 20-6 at 6. However, plaintiff does
not contend that the report was issued by Wellenstein.
The misbehavior
Wellenstein.

report

was

not

issued

by

On September 16, 2015, plaintiff filed a grievance
claiming that Wellenstein destroyed forty-five pages of

legal exhibits. See Am. Compl. at 32. On September
18, 2015, Goppert issued a memorandum stating that,
as of September 22, 2015, LTPC inmates would be
allowed physical access to the law library. See id. at 22.
On September 27, 2015, C.O. Kiernan, 15 Wellenstein's
friend, issued a misbehavior report charging plaintiff with
smoking. See id.
15

Kiernan is not a defendant in this action.

*5 On October 23, 2015, plaintiff filed a grievance
claiming that Wellenstein placed a sign on the copier
indicating that it was “not in use” and refused to give the
relief officer the password for the copier. Dkt. No. 20-6 at
14. As a result, plaintiff had to “remake” pages and have
“10 copies re-notarized.” See Dkt. No. 20-6 at 14.
On November 6, 2015, plaintiff filed a grievance against
Wellenstein claiming that he refused to make copies
and routinely closed the library early. Dkt. No. 20-6
at 15. On November 12, 2015, another inmate set fire
to plaintiff's cell. See Am. Compl. at 33. On the same
day, plaintiff received a misbehavior report, issued by
U. Upshaw (“Upshaw”), 16 charging him with smoking,
arson, making false statements, and possessing flammable
materials. See id.; Dkt. No. 20-6 at 24. The charges in
the misbehavior report were dismissed after plaintiff was
confined in keeplock for eight days. See Am. Compl. at
40. After the incident, plaintiff cleaned his old cell but
Goppert refused to allow plaintiff to return to his cell.
See id. Instead, plaintiff was forced to occupy the second
cell on the company, next to the cell used as the inmate
bathroom. See id. Plaintiff filed numerous complaints
with the security staff regarding his placement in a cell
where he was “constantly harassed by other inmates” and
subjected to slamming doors, banging on the walls and
defamatory remarks. See id. at 40-41.
16

Upshaw is not a defendant in this action.

On November 18, 2015, Wellenstein issued a misbehavior
report charging plaintiff with harassment. See Dkt. No.
20-6 at 16. On November 19, 2015, plaintiff's cell was
searched. See Am. Compl. at 34. During the search, the
officers walked on his legal work and dumped his work
into a pile with trash on top of it. See id. Plaintiff's
envelopes were confiscated and plaintiff's Koran was
thrown in the garbage and removed from his cell. See id.
On November 22, 2015, plaintiff's cell was searched and
his legal work was placed in draft bags. See id.

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On December 11, 2015, plaintiff received a misbehavior
report from Wellenstein charging plaintiff with
harassment and failing to obey a direct order. See Am.
Compl. at 34; Dkt. No. 20-6 at 26. On December 8,
2015 and December 23, 2015, Wellenstein disposed of a
list of cases that plaintiff printed related to a decision
and order in the civil rights action presently before this
court. See Am. Compl. at 35. On December 15, 2015,
Ward issued a decision denying plaintiff's November 18,
2015 grievance regarding “inefficient operation in law

From 2010 until January 2016, plaintiff had a prayer
rug in his cell. See Am. Compl. at 37. On January 16,
2016, Carpenter told plaintiff that he did not have the
proper permits for the rug and confiscated the rug because

library.” 17 See Dkt. No. 20-6 at 55. Ward found that
plaintiff failed to substantiate his claim that he was the
victim of harassment. Dkt. No. 20-6 at 55.

19

17

The November 18, 2015 grievance is not annexed as
an exhibit to the amended complaint.

On January 4, 2015, plaintiff was forced to submit
to a “urine analysis.” See Am. Compl. at 35. On
January 14, 2016, plaintiff filed a grievance claiming
that the photocopier was not operating correctly because
Wellenstein manipulated the memory function. Dkt. No.
20-6 at 60. On January 6, 2016, plaintiff filed a grievance
related to his cell location claiming that he receives verbal
abuse from other inmates. 18 See Am. Compl. at 41.
On January 15, 2016, Ward responded and denied the
grievance noting that plaintiff was not entitled to the
housing and/or bed location of his choice. See id.; Dkt.
No. 20-6 at 58.
18

The grievance was not annexed as an exhibit to the
complaint.

*6 On January 14, 2016, plaintiff had a medical
appointment and, at 8:30 A.M., plaintiff was waiting for
the medical trip officers to escort him to the appointment.
See Am. Compl. at 42. At 8:30 A.M., 9:30 A.M., 10:30
A.M. and 12:30 P.M., defendant Corrections Officer
Digert (“Digert”) repeatedly told plaintiff that the “trip
officers were coming.” See id. When the trip officers failed
to appear, plaintiff assumed that the medical appointment
was cancelled and, being a diabetic, plaintiff decided
to eat and drink a cup of coffee. See id. at 42-43. At
approximately 1:45 P.M., plaintiff was transferred to a
local hospital for a heart test. See id. at 43. Upon arrival,
plaintiff was advised that the test could not be performed
and needed to be rescheduled because plaintiff drank
coffee. See id. Plaintiff was deemed to have “refused” the
appointment. See Am. Compl. at 36, 42.

plaintiff was not a registered Muslim. 19 See id. Plaintiff
asked to retain his rugs until he filed the proper form and
a grievance but his request was denied. See Am. Compl.
at 37. Plaintiff was compelled to mail the prayer rug to his
home. See id.
Plaintiff concedes that he changed he never filed a
change of religion form. See Am. Compl. at 37.

On January 18, 2016, at approximately 4:00 P.M.,
someone “slammed plaintiff's cell door” causing a coffee
cup to spill onto plaintiff's legal work. See Am. Compl. at
38. Plaintiff's legal work was destroyed. See id. Plaintiff
assumed that the person who slammed the door was
Inmate Donah and retaliated by dropping a tray of milk in
Donah's cell. See id. at 44. At 9:05 P.M., Donah assaulted
plaintiff while plaintiff was in the recreation room and
a fight ensured. See id. at 44. Plaintiff later learned that
Wellenstein slammed plaintiff's cell door shut. See Am.
Compl. at 38, 44. After the assault, without a disciplinary
hearing, plaintiff was locked in his cell and his property,
including legal work, was confiscated. See id. Plaintiff's
property was placed in a storage room. See id. On January
23, 2016, plaintiff's property was returned to him, but his
file related to his Section 1983 civil rights complaint was
missing. See id.
Construed liberally, the amended complaint contains the
following claims: (1) Wellenstein, Goppert and Ward
violated plaintiff's First Amendment right to access to
the courts; (2) Wellenstein violated plaintiff's Eighth
Amendment rights with use of excessive force; (3)
Digert and Tourtelot were deliberately indifferent to
plaintiff's serious medical needs in violation of plaintiff's
Eighth Amendment rights; (4) conditions of confinement
claims; (5) Carpenter and Goppert violated plaintiff's
First Amendment rights to religious freedom; (6) Ward
and Wellenstein denied plaintiff's FOIL requests; (7)
plaintiff's property was destroyed in violation of his
constitutional rights; (8) defendants retaliated against
plaintiff in violation of his First Amendment rights;
and (9) supervisory claims against Carpenter, Ward and
Goppert. See Am. Compl.

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IV. Analysis
A. Access to Court Claims
The Court discussed the law pertaining to First
Amendment claims and access to the courts in the
December Order. See Dkt. No. 11 at 5-6. The Court
dismissed plaintiff's access to court claims holding:
Here, plaintiff alleges that he was denied access to
the courts because he would not “be able to address
conditions of confinement, appeals, and the ability to
respond to the Attorney General now or in the future,
or be able to submit any effective brief's [sic] and
memorandums of law.” See Compl. at 10. Plaintiff
also claims that he was not able to bind any of his
briefs or documents due to defendants' failure to
provide supplies. Id. at 6. Plaintiff does not state
any facts to plausibly suggest that he suffered any
injury related to a legal claim or material prejudice
as a result of defendants' actions, or inactions. The
complaint lacks facts establishing that defendants'
misconduct resulted in “actual harm” such as the “the
dismissal of an otherwise meritorious legal claim.”
See Cancel v. Goord, No. 00 Civ 2042, 2001 WL
303713, at *4 (S.D.N.Y. March 29, 2001) (“[I]n order
to survive a motion to dismiss [an access-to-thecourts claim] a plaintiff must allege not only that
the defendant's conduct was deliberate and malicious,
but also that the defendant's actions resulted in actual
injury to the plaintiff such as the dismissal of an
otherwise meritorious legal claim.”).
*7 Dkt. No. 11 at 6.
In the amended complaint, plaintiff reasserts his
allegations against Wellenstein and pleads additional facts
and a cause of action against Ward and Goppert.

1. Wellenstein
Plaintiff claims that Wellenstein infringed upon his First
Amendment right to access to the courts. Plaintiff also
claims that Wellenstein knew that the law library was
inadequate and refused to correct the deficiencies. See id.
at 30. In the amended complaint, plaintiff claims that from
November 2014 until January 2016, Wellenstein refused
to provide plaintiff with legal materials including books,
computer assistance, supplies, copies of cases and exhibits
for legal submissions. See Am. Compl. at 11, 14, 20, 21.
Plaintiff also alleges that Wellenstein deliberately “mixed

up” and destroyed legal exhibits, played the radio in the
library to disrupt inmates and closed the library early. See
id. at 13, 15, 20, 23, 25, 33, 38. As the supervisor of the Cell
Study Program, Wellenstein delivered the wrong materials
and refused to accept legal requests on Friday, Saturday,
and Sunday. See id. at 15, 23 and 25. With respect to
the library, the books have not been updated since 2011
and the Law Journal Magazine is the only publication
available to LTPC inmates that contains current caselaw
and court decisions. See Am. Compl. at 30.
As a result of Wellenstein's actions, plaintiff asserts that
he was prevented from filing a writ of error coram nobis,
a petition for habeas corpus relief, a petition with the
Department of Veterans' Affairs, an Article 78 petition
and an appeal with the New York State Retirement
System. See Am. Compl. at 10, 11, 35, 39, 46, 47. Plaintiff
also alleges that his submissions in his Court of Claims
case and in the civil matter currently before this court were
delayed as a result of defendants' actions. See Am. Compl.
at 24, 32, 34, 35, 45.
At this juncture, the Court finds that plaintiff's First
Amendment access to court claims against Wellenstein
survive sua sponte review and require a response. In so
ruling, the Court expresses no opinion as to whether these
claims can withstand a properly filed motion to dismiss or
for summary judgment.

2. Ward and Goppert
Plaintiff contends that Goppert and Ward violated his
First Amendment rights because he was denied plaintiff
physical access to the law library. 20 See Am. Compl. at
26.
20

In March 2015, Goppert issued a memorandum
prohibiting LTPC inmates from having physical
access to the law library. See Dkt. No. 20-1 at 3. On
September 18, 2015, Goppert issued a memorandum
directing that LTPC inmates have physical access to
the law library. See Am. Compl. at 22.

The constitutional right to access to the courts
encompasses the right to meaningful access to legal
materials, not physical access to a law library. See
Benjamin v. Jacobson, 923 F.Supp. 517, 522 (S.D.N.Y.
1996) (citing Bounds v. Smith, 430 U.S. 817, 823 (1977)).
Here, plaintiff has failed to plead facts suggesting that
defendants violated his constitutional rights by restricting

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him to the cell study program from March 2015 until
September 2015. See Clanton v. Horn, 2009 WL 1285868,
at *1 (S.D.N.Y. May 4, 2009) (finding no constitutional
violation in cell study program as the plaintiff was
provided an “adequate alternative means of performing
legal research.”).
*8 Consequently, plaintiff's First Amendment claims
against Ward and Goppert are dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) f
or failure to state a claim upon which relief may be
granted. 21
21

Plaintiff also alleges that Goppert implemented a
policy by which legal requests would not be picked up
on Friday, Saturday, and Sunday and Ward “knew
the law library was inadequate.” See Am. Compl. at
19, 30. These allegations are discussed in Part IV(F),
infra.

B. Eighth Amendment Claims
1. Excessive Force
The Eighth Amendment's prohibition against cruel and
unusual punishment encompasses the use of excessive
force against an inmate, who must prove two components:
(1) subjectively, that the defendant acted wantonly and in
bad faith, and (2) objectively, that the defendant's actions
violated “contemporary standards of decency.” Blyden v.
Mancusi, 186 F.3d 252, 262-63 (2d Cir. 1999) (internal
quotations omitted) (citing Hudson v. McMillian, 503 U.S.
1, 8 (1992)). In this regard, while “a de minimis use of
force will rarely suffice to state a constitutional claim,”
Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993), the
malicious use of force to cause harm constitutes an Eighth
Amendment violation per se because in such an instance “
contemporary standards of decency are always violated.”
Blyden, 186 F.3d at 263 (citing Hudson, 503 U.S. at 9).
The key inquiry into a claim of excessive force is “whether
force was applied in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to
cause harm.” Hudson, 503 U.S. at 7 (citing Whitley v.
Albers, 475 U.S. 312, 321-22 (1986)); see Johnson v. Glick,
481 F.2d 1028, 1033 (2d Cir. 1973); see also Wilkins v.
Gaddy, 559 U.S. 34, 37 (2010) (per curiam) explaining
that the nature of the force applied is the ” core judicial
inquiry ” in excessive force cases—not “whether a certain
quantum of injury was sustained”). “Accordingly, when
considering the subjective element of the governing Eighth

Amendment test, a court must be mindful that the absence
of serious injury, though relevant, does not necessarily
negate a finding of wantonness.” Wynter v. Ramey, No.
11-CV-0257 (DNH/DEP), 2013 W L 5465343, at *5
(N.D.N.Y. Sept. 30, 2013) (citations omitted).
In this case, plaintiff claims that Wellenstein “assaulted”
him on April 30, 2015. See Am. Compl. at 17. Plaintiff
makes no specific accusation regarding the force exerted
but summarily states that Wellenstein “assaulted [him] by
pushing me around my cell.” See id. Plaintiff's grievance,
filed on the same day, belies his excessive force claims. In
the grievance, plaintiff stated that Wellenstein, “opened
my cell door and pushed me aside and came into my
cell.” See Dkt. No. 20-3 at 42. Plaintiff did not describe
the incident as an “assault” or an “attack” and did
not suggest that the use of force was more than de
minimis. See Boddie v. Schnieder, 105 F.3d 857, 862 (2d
Cir. 1997) (holding that the plaintiff's allegations that he
was “bumped, grabbed, elbowed, and pushed” by the
defendants did not “approach an Eighth Amendment
claim”). Plaintiff's allegations against Wellenstein fail
to suggest that Wellenstein used malicious force that
caused plaintiff harm. Consequently, plaintiff's Eighth
Amendment excessive force claims are dismissed pursuant
to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for
failure to state a claim upon which relief may be granted.

2. Deliberate Indifference to Serious Medical Needs
*9 To state an Eighth Amendment claim for medical
indifference, a plaintiff must allege that the defendant
was deliberately indifferent to a serious medical need. See
Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate
indifference has two necessary components, one objective
and the other subjective. See Hathaway v. Coughlin, 99
F.3d 550, 553 (2d Cir. 1996). The objective component
of an Eighth Amendment deliberate indifference claim
“requires that the alleged deprivation must be sufficiently
serious, in the sense that a condition of urgency, one
that may produce death, degeneration, or extreme pain
exists.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)
(quoting Hathaway, 99 F.3d at 553) (internal quotation
marks omitted). Under the subjective element, medical
mistreatment rises to the level of deliberate indifference
only when it “involves culpable recklessness, i.e., an act or
a failure to act ... that evinces 'a conscious disregard of a
substantial risk of serious harm.”' Chance v. Armstrong,
143 F. 3d 698, 703 (2d Cir. 1998) (quoting Hathaway,
99 F.3d at 553). “Deliberate indifference requires more

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than negligence but less than conduct undertaken for the
very purpose of causing harm.” Hathaway v. Coughlin, 37
F.3d 63, 66 (2d Cir. 1994). To assert a claim for deliberate
indifference, an inmate must allege that (1) a prison
medical care provider was aware of facts from which the
inference could be drawn that the inmate had a serious
medical need; and (2) the medical care provider actually
drew that inference. Farmer, 511 U.S. at 837; Chance,
143 F.3d at 702. The inmate must also demonstrate that
the provider consciously and intentionally disregarded or
ignored that serious medical need. Farmer, 511 U.S. at
835.

was plaintiff's decision and, as a result, his stress test states
was rescheduled. See Am. Compl. at 43. Nothing in the
amended complaint suggests that Digert was deliberately
indifferent to plaintiff's medical needs.

Here, plaintiff claims that he is diabetic and suffers
from chest pains, anxiety, depression, and stress. See
Am. Compl. at 39, 43. Even assuming that plaintiff
suffered from a serious medical need, plaintiff must allege
facts suggesting that defendants acted with the necessary
culpable state of mind.

Plaintiff claims that Tourtelot was deliberately indifferent
to his medical needs when she refused to provide plaintiff
with his “2013 medications.” See Am. Compl. at 39.
Plaintiff has not plead facts suggesting that Tourtelot
was aware that withholding unspecified medication would
result in an excessive risk to plaintiff's health or that
defendant acted with the necessary culpable state of
mind. See Baskerville v. Blot, 224 F. Supp. 2d 723,
735-36 (S.D.N.Y. 2002) (dismissing Eighth Amendment
claim because the plaintiff's assertions did not suggest
that the defendant “acted intentionally to withhold
prescribed medication or was in any way responsible for
the delay in obtaining a refill of his medication from
the outside pharmacy”). Plaintiff's allegation amounts
to nothing more than a quarrel over the nature of
his treatment. See Chance v. Armstrong, 143 F.3d 698,
703 (2d Cir.1998) (“ Courts have repeatedly held that
disagreements over treatment do not rise to the level of a
Constitutional violation.”). Plaintiff's Eighth Amendment
deliberate indifference claims against Tourtelot are
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted.

a. Digert
Plaintiff claims that due to Digert's deliberate and
intentional conduct, plaintiff's heart stress test was
cancelled and rescheduled. See Am. Compl. at 36, 42. As
a result, plaintiff suffered from constant and “prolonged”
chest pains. See id. “Non-medical prison personnel engage
in deliberate indifference where they 'intentionally delayed
access to medical care when the inmate was in extreme
pain and has made his medical problem known to the
attendant prison personnel.”' Baumann v. Walsh, 36 F.
Supp. 2d 508, 512 (N.D.N.Y. 1999). Here, the amended
complaint does not suggest that plaintiff was in any
pain while he awaited his transport to the hospital f or
the stress test. The amended complaint is void of any
facts suggesting that Digert knew that plaintiff suffered
from any serious medical condition or that plaintiff
sustained any substantial harm or pain due to the delay
in transporting plaintiff. Plaintiff does not claim that he
voiced any concern to Digert about the delay. Cf. Hoover
v. Hardman, No. 99-CV-1855 (FJS), 2005 W L 1949890,
at *6 (N.D.N.Y. Aug. 15, 2005) (finding an issue of fact
where the plaintiff claimed that the defendant delayed
his access to medical care with the knowledge that the
plaintiff was in extreme pain). Moreover, plaintiff does
not allege the Digert knew that plaintiff was diabetic
or that Digert somehow forced or compelled plaintiff to
“have something to eat and a cup of coffee.” Rather, that

Plaintiff's Eighth Amendment deliberate indifference
claims against Digert are dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) f or failure to
state a claim upon which relief may be granted.

b. Tourtelot

3. Conditions of Confinement
*10 From March 13, 2015 through January 31, 2016,
plaintiff was placed in keeplock confinement, with a loss
of recreation, for a total of 108 days. See Am. Compl.
at 42. As a result, plaintiff suffered from severe mental
disorders and “many other symptoms.” See id. Even
assuming plaintiff's allegations are sufficient to satisfy
the objective prong of the Eighth Amendment analysis,
the complaint lacks facts establishing which correctional
officers were responsible or personally involved in the
alleged unconstitutional conditions. It is well settled

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that “personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award
of damages under § 1983.” Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield,
950 F.2d 880, 885 (2d Cir. 1991)). Thus, “a Section 1983
plaintiff must 'allege a tangible connection between the
acts of the defendant and the injuries suffered.”' Austin
v. Pappas, No. 04-CV-7263, 2008 W L 857528, at *2
(S.D.N.Y. Mar. 31, 2008) (quoting Bass v. Jackson, 790
F.2d 260, 263 (2d Cir. 1986)) (other citation omitted).
Here, plaintiff does not identify who was responsible
for his keeplock confinement, whether he complained
about his conditions of confinement and, if so, to whom
he forwarded complaints. Plaintiff has not pleaded any
facts against the defendants related to his conditions of
confinement and thus, has failed to sufficiently allege
that any defendant acted with a deliberate state of
mind. Consequently, plaintiff's Eighth Amendment claims
related to his conditions of confinement are dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C.
§ 1915A(b) for failure to state a claim. See Toliver v.
Dep't of Corrs., No. 10 Civ. 6298, 2012 W L 4510635,
at *9 (S.D.N.Y. Apr. 10, 2012) (dismissing the deliberate
indifference claim for failure to plead facts identifying a
responsible official who acted with a sufficiently culpable
state of mind).

C. First Amendment Religious Freedom Claims
Plaintiff claims that Carpenter and Goppert denied
plaintiff the right to exercise his religious beliefs when
they confiscated plaintiff's prayer rug. See Am. Compl.
at 51. Prisoners have long been understood to retain
some measure of the constitutional protection afforded
by the First Amendment's Free Exercise Clause. See
Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003)
(citing Pell v. Procunier, 417 U.S. 817, 822 (1974));
see also Nolley v. County of Erie, No. 07-CV-488S,
2008 W L 859165 (W.D.N.Y. Mar. 31, 2008) (applying
First Amendment freedom of religion protections to a
pretrial detainee). “Balanced against the constitutional
protections afforded prison inmates, including the right
to free exercise of religion, [however,] are the interests of
prison officials charged with complex duties arising from
administration of the penal system.” Id. (citing Benjamin
v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990)). To state
a First Amendment Free Exercise claim, a plaintiff must
allege that (1) the practice asserted is religious in the
person's scheme of beliefs, and that the belief is sincerely
held; (2) the challenged practice of the prison officials

infringes upon the religious belief; and (3) the challenged
practice of the prison officials furthers some legitimate
penological objective. Farid v. Smith, 850 F.2d 917, 926
(2d Cir.1988) (citations omitted). A prisoner “must show
at the threshold that the disputed conduct substantially
burdens his sincerely held religious beliefs.” Salahuddin
v. Goord, 467 F.3d 263, 274–75 (2d Cir. 2006) (citing
Ford, 352 F.3d at 591). A religious belief is “sincerely
held” when the plaintiff subjectively, sincerely holds a
particular belief that is religious in nature. Ford, 352
F.3d at 590. A prisoner's sincerely held religious belief is
“substantially burdened” where “the state puts substantial
pressure on an adherent to modify his behavior and
to violate his beliefs.” Jolly v. Coughlin, 76 F.3d 468,
476–77 (2d Cir.1996). Once a plaintiff establishes that
a sincerely held religious belief has been substantially
burdened,“[t]he defendants then bear the relatively limited
burden of identifying the legitimate penological interests
that justify the impinging conduct; the burden remains
with the prisoner to show that these articulated concerns
were irrational.” Salahuddin, 467 F.3d at 275 (quoting
Ford, 352 F.3d at 595) (punctuation omitted).
Here, the amended complaint lacks any facts establishing
that plaintiff's religious beliefs were “sincerely held” or
that his beliefs were “substantially burdened.” Indeed, the
complaint contains nothing more than vague accusations
that plaintiff was forced to send his rug home and is
“still without a prayer rug to say his prayer's [sic]”
without dates, times or facts establishing how he was
burdened. The allegations, without more, fail to plausibly
suggest that Carpenter or Goppert burdened plaintiff's
right to freely practice his religion. Thus, plaintiff's First
Amendment claims against are dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b)
for failure to state a claim upon which relief may be
granted. 22
22

To the extent that the amended complaint could be
construed as asserting a claim for a First Amendment
violation based upon the allegation that plaintiff's
Koran was thrown in the garbage and removed
from his cell during the November 2015 cell search,
that claim is subject to dismissal. The amended
complaint does not contain any facts related to who
was responsible for this action. Indeed, the amended
complaint lacks any facts identifying any officer
involved in the cell search.

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D. FOIL Requests
*11 In the amended complaint, plaintiff claims that he
filed twelve FOIL requests for the following documents:
Captain Goppert's March 2015 memorandum; all
grievances filed related to the law library; Directive 4933;
facility operations manual; legal materials request forms;
and legal materials sign out sheet for April 20, 2015 and
April 21, 2015. See Am. Compl. at 31, 47; Dkt. No. 20-4
at 20-25.
A violation of New York State FOIL does not give rise
to a federal claim under Section 1983. Sonds v. Cuomo,
No. 9:11-CV-0895 (NAM/ATB), 2012 WL 952540, at *3
(N.D.N.Y. Feb. 3, 2012) (“Plaintiff's state FOIL request
cannot be the basis of a federal action.”); see also Pollnow
v. Glennon, 757 F.2d 496, 501 (2d Cir. 1985) (“ Clearly,
a violation of state law is not cognizable under § 1983.”).
“The appropriate vehicle for challenging denials of access
guaranteed by the New York Freedom of Information
law is a state court proceeding pursuant to N.Y.C.P.L.R.
Article 78 upon exhaustion of administrative remedies.”
Schuloff v. Fields, 950 F. Supp. 66, 67-68 (E.D.N.Y. 1997);
Posr v. City of N.Y., No. 10-CV-2551, 2013 WL 2419142,
at *14 (S.D.N.Y. June 4, 2013) (“Under New York state
law, if an agency or government official fails to comply
with the provisions of FOIL, the person submitting the
FOIL request must pursue an administrative appeal or
seek remedies in state court pursuant to N.Y. C.P.L.R.
Article 78.” (citing N.Y. Pub. Off. Law § 89)).
Accordingly, plaintiff's claim that defendants violated
FOIL is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)
and 28 U.S.C. § 1915A(b) f or failure to state a claim upon
which relief may be granted pursuant to Section 1983.

E. Destruction of Property
Plaintiff claims that his property was destroyed during
the January 2015 cell search. See Am. Compl. at 38. The
Supreme Court has held that the unauthorized intentional
destruction of prisoner's property may not be the basis
for constitutional claims if sufficient post deprivation
remedies are available to address the claim. Hudson v.
Palmer, 468 U.S. 517, 531 (1984) (citing Parratt v. Taylor,
451 U.S. 527, 541 (1981)); see Rivera-Powell v. N.Y.C. Bd.
of Elections, 470 F.3d 458, 465 (2d Cir. 2006) (“ When
the state conduct in question is random and unauthorized,
the state satisfies procedural due process requirements so
long as it provides meaningful post deprivation remedy.”);

Davis v. New York, 311 F. App'x 397, 400 (2d Cir. 2009)
(“An alleged loss of property, 'whether intentional or
negligent-will not support a due process claim redressable
under § 1983 if adequate state post-deprivation remedies
are available.”') (quoting Hudson, 468 U.S. 533). “New
York in fact affords an adequate post-deprivation remedy
in the form of, inter alia, a Court of Claims action.”
Jackson v. Burke, 256 F.3d 93, 96 (2d Cir. 2001). Because
plaintiff has access to adequate state law remedies, he
has not been deprived of property without due process of
law and therefore cannot state a claim for relief pursuant
to Section 1983. See Love v. Coughlin, 714 F.2d 207,
208-09 (2d Cir. 1983) (per curiam). Plaintiff's claims are
also subject to dismissal as plaintiff failed to identify any
individual involved in or responsible for the cell search.
For the reasons set forth herein and in Part IV(B)(3),
plaintiff's claim that defendants destroyed his property is
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted pursuant to Section 1983

F. Supervisory Claims
*12 In the original complaint, plaintiff alleged that Ward
was personally involved in the constitutional violations
because he reviewed plaintiff's grievance appeals and was
responsible for the “care and custody of inmates.” See
Compl. at 11. In the December Order, the Court discussed
the law related to supervisory liability. See Dkt. No. 11 at
10-12. The Court dismissed plaintiff's claims holding:
Even assuming plaintiff sufficiently pleaded a
constitutional violation, plaintiff's claims against
Ward are subject to dismissal as the allegations are
nothing more than legal conclusions, unsupported by
any facts. The complaint lacks any facts establishing
that Ward was personally involved in any decision
related to plaintiff's use of the law library or access
to legal materials. The conclusory assertion that
Ward was responsible for “grievance appeals” is
unsupported by the 237 pages of exhibits or any facts
that plausibly suggest that Ward was “confronted
with a situation that he f ailed to remedy.”
Id. at 12.
In the amended complaint, plaintiff attempts to cure the
deficiencies in his allegations against Ward and asserts
new supervisory claims against Goppert and Carpenter.

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10

Flynn v. Ward, Not Reported in F.Supp.3d (2016)
2016 WL 1357737

1. Ward
Plaintiff reiterates his claim that Ward was aware of
Wellenstein's actions because he responded to plaintiff's
grievances. See Am. Compl. at 23, 27, 31. Plaintiff
also contends that Ward knew that the law library
was inadequate. “[C]ourts in this circuit have held that
personal involvement may be found where a supervisor
receives, reviews, and responds to a plaintiff's grievance.”
Lewis v. Wallace, No. 9:11-CV-0867 (DNH/DEP), 2013
W L 1566557, at *5 (N.D.N.Y. Feb. 22, 2013) (collecting
cases) report and recommendation adopted, No. 9:11CV-0867 DNH/DEP, 2013 W L 1566555 (N.D.N.Y. Apr.
12, 2013).
Plaintiff identified four grievances that he filed against
Wellenstein in August 2015, and December 2015 and
annexed copies of Ward's responses to those grievances.
See Dkt. No. 20-6 at 53, 55. In those grievances, plaintiff
refers to Wellenstein's alleged retaliatory conduct and the
inefficient operation in the law library. See id. At this
juncture, the Court finds that plaintiff's supervisory claims
against Ward survive sua sponte review and require a
response. In so ruling, the Court expresses no opinion as to
whether this claim can withstand a properly filed motion
to dismiss or for summary judgment.

2. Goppert
In the amended complaint, plaintiff claims that Goppert
was aware of Wellenstein's harassment because Goppert
responded to plaintiff's appeals related to his disciplinary
hearings. See Am. Compl. at 23, 27, 31, 40, 44.
“ [W]hile personal involvement cannot be founded solely
on supervision, liability can be found if the official
proactively participated in reviewing the administrative
appeals as opposed merely to rubber-stamping the
results.” Woodward v. Mullah, No. 08–CV–0436A, 2009
W L 4730309, at * 2–3 (W.D.N.Y. Dec.7, 2009) (quoting
Hamilton v. Smith, 2009 WL 31995331, at * 22 (N.D.N.Y.
2009), report and recommendation adopted as modified,
2009 WL 3199520). The amended complaint lacks facts
to plausibly suggest that Goppert reviewed any appeal.
Indeed, the am ended complaint is void of any facts
related to any disciplinary hearings or appeals including
when, where or how plaintiff appealed. Without such
allegations, plaintiff has failed to plead that Goppert
investigated or reviewed his appeals to establish personal
involvement in any constitutional violation. See Brown
v. Brun, No. 10-CV-0397A, 2010 W L 5072125, at *3

(W.D.N.Y. Dec. 7, 2010) (holding that the allegation
that the defendant upheld the hearing, without more, was
insufficient to state a claim against the defendant).
*13 Plaintiff also claims that Goppert implemented a
policy inconsistent with Section 21.04 of the Facilities
Operation Manual because he “ told law library officers
they did not have to pick up request forms on weekends.”
See Am. Compl. at 19. In support of his claims against
Goppert, plaintiff annexed copies of correspondence
addressed to Goppert wherein plaintiff advised that his
legal requests were not being picked up on the weekends
and claimed that Wellenstein intentionally destroyed
his legal exhibits. See Dkt. No. 20-4 at 12, 14. The
Second Circuit has cautioned against dismissing claims for
failure to allege personal involvement without granting
leave to amend where the plaintiff may allege that
an official failed to respond to a letter of complaint.
Grullon v. City of New Haven, 720 F.3d 133, 141
(2d Cir. 2013) (holding that a prisoner's letter of
complaint sent to a prison warden “at an appropriate
address and by appropriate means” would suffice to
state facts plausibly suggesting personal involvement).
While cognizant of Grullon, the Court finds that, as
presently pleaded, plaintiff has failed to establish that
Goppert was personally involved in any constitutional
deprivation. While the memoranda contain Goppert's
name, plaintiff has failed to plead facts establishing where
the memoranda were sent, by what means they were
forwarded and what response, if any, he received from
Goppert. Without more, the allegations are not enough
to allege personal involvement in any constitutional
deprivation. See Guillory v. Cuomo, 616 F. App'x 12, 14
(2d Cir. 2015) (summary order). Plaintiff's supervisory
claims against Goppert are dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for
failure to state a claim upon which relief may be granted.

3. Carpenter
Plaintiff alleges that Carpenter, as the law library
supervisor, was responsible for Wellenstein's actions. As
the Court discussed in the December Order, conclusory
allegations that a supervisor failed to monitor a
subordinate are insufficient to establish personal liability.
See Dkt. No. 11 at 11. The allegations in the amended
complaint do not cure the deficiencies in plaintiff's
supervisory claim against Carpenter. While plaintiff
annexed a copy of a letter to Carpenter, the letter does not
mention Wellenstein and merely advised Carpenter that

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11

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2016 WL 1357737

the law library stapler was inoperable. 23 See Am. Compl.
at 14; Dkt. No. 20-4 at 4. For the reasons set forth in
the December Order, plaintiff's supervisory claims against
Carpenter are dismissed pursuant to 28 U.S.C. § 1915(e)
(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim
upon which relief may be granted.
23

As discussed in Part IV(F)(2), the amended complaint
does not contain any facts related to where plaintiff
forwarded this letter to Carpenter, how it was
forwarded or what response, if any, plaintiff received.

G. First Amendment Retaliation Claims
The Court discussed the law pertaining to retaliation
claims in the December Order. See Dkt. No. 11
at 6-8. In the amended complaint, plaintiff reiterates
his retaliation claims against Wellenstein and asserts
additional retaliation claim s against other defendants.

1. Claims Against Wellenstein
In the original complaint, plaintiff alleged that
Wellenstein retaliated against him when he filed a false
misbehavior report and destroyed plaintiff's legal work.
See Compl. at 11. The Court dismissed the claim holding:
In this instance, plaintiff annexed
copies of several grievances
filed against Wellenstein. See
Dkt. No. 1-2. Even assuming
plaintiff sufficiently pleaded that
he engaged in protected conduct
and that the destruction of legal
work and receipt of a misbehavior
report constitute adverse actions,
the complaint lacks any facts
suggesting a causal connection
between the conduct and actions.
The complaint is devoid of any
facts related to the substance of
the misbehavior report, the date
that it was issued, or any other
circumstantial evidence to suggest
a causal relationship. Plaintiff's
conclusory allegations fail to state
a claim for retaliation against
Wellenstein. See Geer v. Brown,
No. 14-CV-650 (DNH/CFH),
2015 WL 847426, at *2 (N.D.N.Y.

Feb. 26, 2015) (finding that the
plaintiff failed to proffer any
facts showing a causal connection
between filing grievances and a
false misbehavior report).
Dkt. No. 11 at 8.
In the amended complaint, plaintiff provided facts related
to eighteen grievances that he filed against Wellenstein
from January 6, 2015 through November 15, 2015. See
Dkt. No. 20-3 at 2, 3, 8, 10-12, 15-21, 34, 42, 43,
44, 46 and 47; Dkt. No. 20-6 at 1-4, 10, 14 and 15.
Plaintiff also alleges that as a result of filing those
grievances, Wellenstein retaliated against him when he
issued misbehavior reports in April 2015, August 2015,
November 2015 and December 2015. 24 See Dkt. No. 20-6
at 5-6, 8, 12, 24 and 26. Plaintiff further contends that
Wellenstein assaulted him, denied him access to the courts
and threatened him in retaliation for grievances filed in
April 2015 and May 2015. See Am. Compl. at 17, 18, 32.
24

Plaintiff annexed copies of the grievances and
misbehavior reports as exhibits to the amended
complaint.

*14 The Court finds that the retaliation claims against
Wellenstein survive sua sponte review and require a
response. In so ruling, the Court expresses no opinion as
to whether these claims can withstand a properly filed
motion to dismiss or for summary judgment.

2. Package Room Incident, Cell Search, and Urinalysis
Plaintiff asserts retaliation claims based upon the
following incidents: (1) on August 22, 2015, the “package
room officer” refused to provide a large manilla envelope
for plaintiff to mail his personal and legal mail; (2)
retaliatory cell search on November 19, 2015; (3) January
14, 2016 “urine analysis”; and (4) keeplock confinement.
See Am. Compl. at 18, 20-21, 34, 35. Plaintiff contends
that these incidents occurred in retaliation f or “the
numerous grievances filed on the law library.” See id.
With respect to these incidents, plaintiff does not
identify the person or persons responsible for the alleged
conduct and has not named any “John Doe” defendants.
Plaintiff's failure to identify the parties responsible for the
aforementioned incidents requires the Court to dismiss
these retaliation claims. See Renelique v. Doe, No. 99

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12

Flynn v. Ward, Not Reported in F.Supp.3d (2016)
2016 WL 1357737

CIV.10425, 2003 WL 23023771, at *12 (S.D.N.Y. Dec. 29,
2003) (finding that plaintiff failed to name, as defendants,
any individuals who were personally involved with the
denial of medical care).

3. Retaliation Claims Based Upon Misbehavior Reports
Issued by Other Officers
Plaintiff claims that he received five misbehavior reports
from individuals other than Wellenstein, in retaliation
for the grievances plaintiff filed against Wellenstein.
Specifically, plaintiff alleges that Jordan, 25 Miller,
Upshaw, and Kieran, among others, issued misbehavior
reports in retaliation for plaintiff filing grievances against
Wellenstein. See Am. Compl. at 13, 16, 20-21, 32 and
33. T he aforementioned individuals are not named in
the caption of the complaint or otherwise identified as
defendants in this action and thus, plaintiff's claims are
subject to dismissal. See Lewis v. Cunningham, No. 05 Civ.
9243, 2007 W L 2412258, at *3 (S.D.N.Y. Aug. 23, 2007)
(dismissing retaliation claims against staff who were not
defendants in the action).
25

With respect to the misbehavior report issued by
Jordan, the amended complaint lacks any facts
suggesting that plaintiff engaged in any protected
conduct prior to the date that the misbehavior report
was issued.

4. Retaliation Claims Against Carpenter, Digert, and
Goppert
Plaintiff contends that, in November 2015, Goppert
refused to allow him the return to his original cell after
the fire and confiscated his prayer rug in retaliation
for the grievances filed against Wellenstein. See Am.
Compl. at 40. Plaintiff also claims that, in January 2016,
Carpenter confiscated his prayer rug in retaliation for the
“many grievances and lawsuits filed against them and their
agents.” See id. at 51. Plaintiff asserts a retaliation claim
against Digert claiming that, on January 14, 2016, Digert
intentionally lied to plaintiff resulting in the cancellation
of plaintiff's medical appointment in retaliation for the
grievances and law suits plaintiff filed against Wellenstein.
See id. at 20.
Even assuming that plaintiff engaged in protected conduct
and that the aforementioned actions were “adverse,”
these retaliation claims are subject to dismissal. The
amended complaint lacks facts suggesting a causal

connection between the action and any of plaintiff's
grievances. Plaintiff has failed to plead how Goppert,
Digert and Carpenter became aware that plaintiff engaged
in protected conduct, i.e., filed grievances. See Faulk v.
Fischer, 545 F. App'x 56, 59 (2d Cir. 2013) (holding that
the plaintiff failed to produce evidence suggesting that the
defendants were “motivated by, or even aware of,” his
grievance); see also Davidson v. Talbot, No. 01-CV-473
(RFT), 2005 WL 928620, at *16 (N.D.N.Y. March 31,
2005) (concluding that the plaintiff's allegation that he
was attacked for filing grievances failed to allege when the
grievances were filed and thus, “th[e] Court had no way of
assessing the [ +] validity of such claim[ ].”); see Guillory
v. Haywood, No. 13-CV-1564 (MAD/TWD), 2015 WL
268933, at *23 (N.D.N.Y. Jan. 21, 2015) (dismissing claim
where the plaintiff failed to allege facts identifying the
lawsuits or facts from which her awareness could be
inferred). The allegations in the amended complaint fail
to sufficiently plead a retaliation claim related to these
incidents.

V. CONCLUSION
*15 WHEREFORE, it is hereby
ORDERED that the amended complaint (Dkt. No. 20),
and all exhibits annexed thereto is accepted for filing and
is deemed the operative pleading; and it is further
ORDERED that the Clerk of the Court is directed to add
Goppert, Digert, Carpenter, and Tourtelot to the docket
as defendants herein; it is further
ORDERED that the following claims are DISMISSED
pursuant to U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b) f or failure to state a claim upon which relief
may be granted: (1) First Amendment access to court
claims against Ward and Goppert; (2) Eighth Amendment
excessive force claims against Wellenstein; (3) Eighth
Amendment claims against Digert and Tourtelot; (4)
Eighth Amendment conditions of confinement claims;
(5) First Amendment freedom of religion claims; (6)
claims based upon the destruction or deprivation of
property; (7) FOIL claims; (8) retaliation claims related
to the package room officer, urine test, cell search,
and keeplock confinement; (9) retaliation claims against
Digert, Carpenter and Goppert; and (10) supervisory
claims against Carpenter and Goppert; it is further

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13

Flynn v. Ward, Not Reported in F.Supp.3d (2016)
2016 WL 1357737

ORDERED that Digert, Tourtelot, Goppert and
Carpenter are DISMISSED as defendants in this action;
and it is further
ORDERED that plaintiff is afforded an opportunity to
request an order of this Court directing service by the U.S.
Marshal and provide payment of the service fee to the U.S.
Marshal in full by money order or certified check; and it
is further
ORDERED that, upon plaintiff's request for assistance
with service of process, the Clerk shall return the file to the
Court for further review; and it is further
ORDERED that, if plaintiff does not request for
assistance with service of process within twenty (20) days
of the filing date of this Decision and Order, the Clerk
shall issue summonses and forward them to plaintiff, who
shall be responsible for effecting service of process on
defendants. Upon issuance of the summonses, the Clerk
shall send a copy of the summonses and complaint to the
Office of the New York Attorney General, together with
a copy of this Decision and Order; and it is further
ORDERED that defendants or their counsel, file a
response to the complaint as provided for in the Federal
Rules of Civil Procedure after service of process upon
them; and it is further
End of Document

ORDERED that all pleadings, motions and other
documents relating to this action must bear the case
number assigned to this action and be filed with the Clerk
of the United States District Court, Northern District of
New York, 7th Floor, Federal Building, 100 S. Clinton
St., Syracuse, New York 13261-7367. Any paper sent by
a party to the Court or the Clerk must be accompanied by
a certificate showing that a true and correct copy of same
was served on all opposing parties or their counsel. Any
document received by the Clerk or the Court which does not
include a proper certificate of service will be stricken from
the docket. Plaintiff must comply with any requests by
the Clerk's Office for any documents that are necessary to
maintain this action. All parties must comply with Local
Rule 7.1 of the Northern District of New York in filing
motions. Plaintiff is also required to promptly notify the
Clerk's Office and all parties or their counsel, in writing, of
any change in his address; their failure to do so will result in
the dismissal of his action; and it is further
*16 ORDERED that the Clerk of the Court shall serve a
copy of this Decision and Order on plaintiff in accordance
with the Local Rules.

All Citations
Not Reported in F.Supp.3d, 2016 WL 1357737
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14

Abreu v. Travers, Not Reported in F.Supp.3d (2016)
2016 WL 6127510

KeyCite Blue Flag – Appeal Notification
Appeal Filed by ABREU v. TRAVERS, 2nd Cir., September 26, 2017  

2016 WL 6127510
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Carlos Abreu, Plaintiff,
v.
Travers, et al., Defendants.
9:15-CV-0540(MAD/ATB)
|
Signed 10/20/2016
Attorneys and Law Firms
CARLOS ABREU, 99-A-3027, Green Haven
Correctional Facility, P.O. Box 4000, Stormville, NY
12582, Plaintiff, pro se.

DECISION and ORDER
MAE A. D'AGOSTINO, United States District Judge
I. INTRODUCTION
*1 Presently before the Court for review is a complaint
submitted for filing by pro se plaintiff Carlos Abreu
pursuant to 42 U.S.C. § 1983 (“Section 1983”). 1 Dkt. No.
1 (“Compl.”). Plaintiff, who is presently incarcerated at
Green Haven Correctional Facility, has paid the filing fee
required for this action.
1

Plaintiff has three other civil actions pending in this
District. See Abreu v. Kooi, No. 9:14-CV-1529 (GLS/
RFT); Abreu v. Miller, No. 9:15-CV-1306 (TJM/
DJS); and Abreu v. Lipka, No. 9:16-CV-0776 (LEK/
DEP).

II. RELEVANT BACKGROUND
This action was originally commenced by plaintiff and
fifteen other inmates in October, 2012, against more than
seventy defendants. See Weathers, et al. v. Travers, et al.,
No. 9:12-CV-1582 (GLS/RFT) (“Weathers”). Plaintiff's
claims were severed from the remaining plaintiffs' claims
in Weathers, he was granted permission to file his
complaint in this action, and his complaint in this action
was deemed filed on October 22, 2012 – the date that the

Weathers action was filed. See Dkt. Nos. 6, 7. The full
history of Weathers is set forth in multiple Decisions and
Orders issued by then-Chief United States District Judge
Gary L. Sharpe in that action and will not be repeated here
unless relevant to the Court's review. See Dkt. Nos. 4-7
(copies of relevant orders from Weathers).

III. DISCUSSION
The legal standard governing the dismissal of a pleading
for failure to state a claim pursuant to 28 U.S.C. §
1915A(b) was discussed at length in this Court's Decision
and Order filed on September 14, 2015, and it will not be
restated in this Decision and Order. 2 See Dkt. No. 8 (the
“September 2015 Order”) at 4-8. Among other things, the
September 2015 Order dismissed the Eighth Amendment
medical indifference claims against defendants Travers,
Marlow, and Lashway arising between February, 2012,
and August, 2012, because those claims were clearly
duplicative of claims asserted by plaintiff in an earlierfiled action. September 2015 Order at 9-10; see also Abreu
v. Lira, No. 9:12-CV-1385 (NAM/DEP) (“Abreu I”),
Dkt. No. 1. Since those claims have been dismissed, the
factual allegations supporting them will not be discussed
in this Decision and Order unless necessary to clarify the
remaining claims. Travers, Marlow, and Lashway remain
defendants as there are other claims asserted against them.
2

Plaintiff is not proceeding in forma pauperis therefore
28 U.S.C. § 1915(e)(2)(B) does not apply.

A. Summary of the Complaint
Plaintiff asserts numerous claims that arose, if at all,
while he was incarcerated at Upstate Correctional Facility
(“Upstate C.F.”). Plaintiff states that all of the defendants
are sued in their individual capacities. Compl. at 8. The
Court will use its best efforts in an attempt to discern
plaintiff's claims and will set forth the facts as alleged by
plaintiff in his complaint.

1. Medical and Mental Health Treatment
Plaintiff suffers from chronic asthma, high cholesterol,
allergies, hemorrhoids, and “other medical conditions.”
Compl. at 9. Prior to arriving at Upstate C.F.,
plaintiff was housed at Southport Correctional Facility
(“Southport C.F.”), where the mental health staff
determined that plaintiff suffered from “serious mental

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1

Abreu v. Travers, Not Reported in F.Supp.3d (2016)
2016 WL 6127510

conditions/psychological traumas.” Id. Also while at
that facility, the medical staff ordered that plaintiff be
scheduled for x-rays or an MRI, that he see a specialist and
an eye doctor, that he undergo a rectal examination, and
receive physical therapy and “other medical attentions.”
Id. At either Southport C.F. or Five Points Correctional
Facility, plaintiff was given an asthma inhaler, Lipitor for
his high cholesterol, and allergy and pain medication. Id.
at 10.
*2 On or about February 29, 2012, while waiting
for medical appointments and physical therapy that
had been scheduled at Southport C.F., plaintiff was
transferred to Upstate C.F. Compl. at 10. Plaintiff
was regularly intimidated, retaliated against, and denied
medical services by the nurses, security, and staff at
Upstate C.F. because they claimed that he had stabbed
two correctional officers at Five Points C.F. Id. at 11.
On April 17, 2012, plaintiff filed a grievance claiming
that defendants Travers and Lashway were harassing and
threatening him. Id. at 18-19.
From November, 2012 until February, 2013, at Upstate
C.F., plaintiff filed nearly daily sick call requests
reporting chronic pain, rectal bleeding, vision and hearing
problems, and headaches, and requesting a back brace,
physical therapy, a colonoscopy, various medications, and
specialist appointments, but the requests were repeatedly
denied or ignored. 3 Compl. at 11-12. Plaintiff was told by
nurses that there was no real doctor at Upstate C.F. and
only defendant nurse practitioner Lashway could schedule
him to see a doctor. Id. at 12. Plaintiff had previously
sued Lashway in 2008; the lawsuit was settled in 2010. Id.
at 12. Defendant Lashway remembered plaintiff from her
previous contact with him at Clinton Correctional Facility
and she “mentioned” plaintiff's lawsuit and complaints
against her, and asked if it was true that plaintiff settled
the lawsuit against her. Id. at 13.
3

Plaintiff does not attribute this alleged misconduct to
a particular person.

Plaintiff
advised
defendants
Rock,
Schroyer,
Kornigsmann, Grinbergs, Smith, Rabideau, and Otis
that defendants Travers, Marlow, and Lashway were not
addressing his medical needs, but they did not correct the
problem. Compl. at 15. On May 10, 2012, plaintiff wrote
to defendant Fischer complaining about the medical staff
misconduct and also told him that he had written several

times to defendants Rock, Uhler, Lira, Zernia, and Quinn
about the same problems but they did not respond. Id. at
25-26, 34.
On August 16, 2012, defendant Travers denied plaintiff
his cholesterol and allergy medication. Compl. at 36. In
an attempt to cover up her misconduct, defendant Travers
lied that plaintiff threw his medication on the floor, and
therefore she asked defendant Lashway to discontinue all
of plaintiff's medications, including his pain medication.
Id. at 36-37.
In August, 2012, plaintiff filed multiple complaints and
sick call slips asking for new glasses because his were
broken, but defendants Travers and Lashway “fail[ed]
or refuse[d] to assist” him. Compl. at 38. Without his
glasses, plaintiff suffers from eye pain, blurred vision,
double vision, headaches or migraines, and cannot read
well. Id. Plaintiff wrote to defendants Otis, Schroyer,
Smith, Rabideau, Grinbergs, and Kornigsmann about his
glasses, but they ignored him. Id. On August 23, 2012,
plaintiff wrote to defendant Bellnier about the continued
misconduct of defendants Travers and Lashway, asking
that he investigate, but Bellnier did not correct the
problem. Id. at 47.
Defendant Marlow denied plaintiff adequate medical
care on August 30 through September 2, 2012, after he
complained that the disciplinary loaf diet was causing
him pain and other medical issues; she just smiled and
walked away without examining plaintiff or reporting the
problem to a doctor. Compl. at 40-41. On September
5, 14, and 15, 2012, defendant Travers denied plaintiff
medical care when he reported medical problems arising
from being placed on the loaf diet. Id. at 41, 45. Defendant
Travers denied plaintiff medical care on October 17 and
18, 2012, for a sore throat, hoarseness, and difficulty
swallowing. Id. at 50.
*3 On November 27, 2012, plaintiff filed a grievance
against defendants Travers and Lashway, claiming that
they ignored his complaints of pain and his requests for his
asthma inhaler, Lipitor, allergy medications, eyeglasses,
an MRI, a colonoscopy, and that he be examined by a
“doctor/specialist.” Compl. at 54. From November, 2012,
and forward, defendants Travers and Lashway continued
to deny plaintiff medical care. Id. at 54-55.

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2

Abreu v. Travers, Not Reported in F.Supp.3d (2016)
2016 WL 6127510

Defendant nurse Waterson would not give plaintiff any
pain medication for his injuries suffered as a result of
an assault on January 24, 2013, and failed to report
plaintiff's serious injuries in the medical records or to
report the sexual assault by defendant Sisto. Compl. at 65.
Plaintiff requested sick call for his injuries from January
24, 2013, through February 3 or 7, 2013, and reported
his “eye conditions, pains, and injuries” to defendants
Greenizen, Uhler, Rock, and Otis in person and in letters
and grievances. Id. at 67. Defendants Laramay and Bell
were also notified. Id.
Plaintiff sent letters to defendants Kemp, Gonzalez,
and Bosco “reporting his medical and mental health
conditions” and also advised defendant Evans. Compl. at
68.

arrived at his cell, accompanied by defendant Zernia,
who stated that defendants Rock and Otis had approved
the cell extraction. Compl. at 64. 4 Defendant Phillips
opened plaintiff's cell door hatch, and a chemical agent
was sprayed in the cell. Id. Plaintiff was ordered to put his
hands through the cell hatch, and when he did, he was hit
with a heavy metal stick. Id. Defendants Grant, Dunning,
Richter, and Sisto entered the cell and beat plaintiff, who
was not resisting but was lying face down on the floor. Id.
at 64-65. Plaintiff was taken to the decontamination room
in handcuffs, where he was beaten again while defendant
Phillips blocked the hand held video camera. Id. at 65-66.
Defendant Sisto choked plaintiff and put his finger inside
of plaintiff's rectum while defendant Phillips falsely yelled
that plaintiff was resisting. Id. at 65. Defendant Sisto
continued to assault plaintiff back at his cell. Id.
4

2. Excessive Force/Sexual Assault
On September 18, 2012, defendant Patterson placed
handcuffs on plaintiff's wrist too tight, pulled plaintiff
back aggressively and violently, conducted a pat frisk,
and intentionally touched plaintiff's genitals and buttocks.
Compl. at 45-46. As a result, both of plaintiff's wrists
were cut and bleeding and he had pain in his testicles,
hands, wrists, and shoulders. Id. at 46. Plaintiff wrote
to defendants Rock, Uhler, Fischer, and Oropallo about
Patterson's misconduct but they failed to correct it. Id. at
46.
On December 3, 2012, defendants Marshall, Lipka,
Tuper, Whitford, and Greenizen physically assaulted
plaintiff in his cell, pulled down his pants, and placed
an unknown object in his “butt/anus/rectal area” and
hit him on his butt, penis/testicles, and other parts of
his body. Compl. at 55. Defendant Marlow refused to
report the sexual assault and noted in plaintiff's record
that he suffered no injuries, even though plaintiff had
cuts on both wrists, several bruises, and his hands were
swollen. Id. at 56. On December 3 and 4, 2012, plaintiff
wrote to defendants Otis, Rock, and Fischer to report the
incident, and defendant Rock sent defendant Oropallo to
investigate the incident. Id. at 56. Despite this, defendants
Rock, Otis, Bellnier, and Uhler did not move plaintiff out
of Upstate C.F. Id. at 57.
On January 24, 2013, plaintiff was falsely accused of
refusing to return his lunch tray and an extraction team

Plaintiff also claims that the cell extraction had been
approved by the medical staff who claimed that
plaintiff did not suffer from asthma, but plaintiff does
not identify an individual from the medical staff who
approved it. Id. at 64.

3. Conditions of Confinement
*4 Between March 2012 until April 2012, defendant
Williams commenced a “campaign of harassment,
discrimination[ ] and retaliation[ ]” by denying plaintiff
toilet paper, tampering with his incoming magazines and
newspapers which he had been approved to receive, and
denying him cleaning supplies and food when she worked
on his block. Compl. at 23. On June 15, 2012, plaintiff
filed a grievance reporting the unsanitary conditions on 9Block where he was housed, including numerous insects,
mice, rats, and vermin, but defendant Williams told
plaintiff that insects, mice, rats, and vermin will not harm
him but only want food. Id. at 32.
On August 27, 2012, defendants Forbes, Jarvis, and
Santamore refused to give plaintiff his dinner or general
library materials and closed the “vision panel” on
plaintiff's cell door. Compl. at 40.
On November 14, 2012, defendant Bilow claimed that
he observed plaintiff sticking an object up his rectal
area. Compl. at 53. As a result of the accusation,
defendant Bilow strip searched plaintiff in front of two
other correctional officers during which time plaintiff
was forced to “open his butt, show his penis, [and] open

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his mouth.” Id. When nothing was found, plaintiff was
placed under 24-hour observation for several days in a
cold room, where he had to go to the bathroom in front
of correctional officers, female and male. Id. Plaintiff
was denied showers and clean clothes and did not have
adequate toilet paper or water. Id. at 54. The room was
lit 24 hours a day, and plaintiff had to sit in the boss
chair multiple times. Id. at 53. Defendant Oropallo and
Greenizen approved the foregoing. Id.

4. Restricted Diet
In May, 2012, plaintiff complained to defendants Rock,
Kornigsmann, Fischer, Prack, Bellnier, Schroyer, and
Otis about the medical problems that he was suffering
from being placed on the disciplinary loaf diet. Compl. at
27-28. Defendants Rock, Kornigsmann, Fischer, Prack,
Bellnier, Schroyer, Otis, Lashway, Uhler, Travers, and
Lira knew that the loaf diet was inadequate and likely
to cause pain. Id. at 27. Among other things, plaintiff
suffered nausea, vomiting, stomach pains, increased
bleeding and pains in his rectal area, constipation, and dry
lips. Id. As a result of disciplinary proceedings held before
defendant Lira, plaintiff was placed on the disciplinary
loaf diet, which defendant Lashway approved on August
24, 2012, without first examining plaintiff, even knowing
that the loaf diet created medical issues for plaintiff. Id.
at 40-42; 47. Defendant Lira knew that it was not an
adequate diet and if he placed plaintiff on the diet it would
harm his health. Id. at 47.

5. Mail Interference, Destruction of
Property, and Access to the Courts
Defendant Wilson denied plaintiff access to law library
materials from February 29, 2012 until March 10, 2012,
even though plaintiff had court deadlines. Compl. at 16.
Defendant Wilson denied plaintiff copies of state court
papers and other legal supplies needed to litigate his state
court actions, and denied his requests for legal books
and legal supplies. Id. at 21-23, 30, 49. Plaintiff filed
grievances against defendant Wilson on March 10, 2012;
April 9, 2012; and April 25, 2012. Id. at 16, 22, 23. On
October 12, 2012, defendant Wilson told plaintiff that the
legal documents that he had sent to the law library for
copying were “missing/lost,” however defendant Wilson
intentionally threw them out because he saw his name in

the papers. Id. at 51. Defendant Wilson acted in retaliation
for the grievances and complaints that plaintiff had filed
against him. Id. Plaintiff wrote to defendant Laramay,
who is “responsible for the law library area,” complaining
about defendant Wilson's misconduct but he failed to
resolve the problem. Id. at 52.
*5 On May 16, 2012, defendant Williams refused to put
plaintiff's legal mail into the mail box but instead threw
it on the floor and it went into the trash. Compl. at
29. On August 27, 2012, defendants Forbes, Jarvis, and
Santamore denied plaintiff his incoming mail, law library
materials, the responses to his grievances and appeals, and
letters from his family. Id. at 40. On October 24, 2012,
defendant Gokey ripped up plaintiff's law library slip.
Id. at 50. In January, 2013, correctional officers ordered
defendant Hungerford to deny plaintiff notary services,
and she stated that she did not care if the courts rejected
plaintiff's papers for lack of a notary. Id. at 59.
On January 24, 2013, defendants Garland and Gokey
searched plaintiff's cell and threw his legal papers all over
the cell and in the shower. Compl. at 61. The legal papers
were out of their envelopes, and many were ripped, wet,
or covered in peanut butter, jelly, and toothpaste. Id.
Plaintiff's personal photos and magazines were destroyed
or ripped, his clothes and jacket were wet and dirty, his
headphones and radio were broken or unusable, and his
legal books were confiscated. Id. Plaintiff reported the
incident to defendant Phillips, who looked at plaintiff's
cell, laughed, and said that's what happens when you file
grievances. Id. at 62.

6. Processing Grievances
Between March, 2012, through June, 2012, defendants
White and Woodward failed or refused to adequately
or properly process plaintiff's grievances or appeals and
mis-coded some of his grievances. Compl. at 18, 21, 31,
51-52. On May 10, 2012, plaintiff wrote to defendant
Bellamy about the misconduct of White and Woodward,
but she did not correct the misconduct. Id. at 26. Plaintiff
also wrote to defendants White and Cromp requesting
information on grievances that he filed. Id. at 58.

7. Threats and Harassment

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Defendant Patterson threatened to assault plaintiff on
September 6, 2012. Compl. at 45. Defendant Gokey
harassed, discriminated, and retaliated against plaintiff
on September 6, September 17, and October 12, 2012,
and continued to threaten him until he left Upstate C.F.
Id. at 48. On October 24, 2012, while defendant Gokey
was escorting defendant Mainville in 9-Block, he stopped
in front of plaintiff's cell and threatened him for filing
a grievance against him. Id. at 50. On November 14,
2012, defendants Travers and Bilow stopped in front of
plaintiff's cell and verbally sexually harassed him. Id. at
55. In December, 2012, defendants Oropallo and Marshall
threatened plaintiff that if he reported misconduct again
he would be beaten and raped. Id. at 56-57. On January
8, 2013, defendant Whitford threatened plaintiff with
physical violence. Id. at 59.

11. Denial of Access to Medical Records

8. Religion Claims

*6 On May 11, 2012, plaintiff filed a grievance
complaining that defendants Smith and Rabideau were
denying plaintiff copies of his medical records in violation
of the Health Insurance Portability and Accountability
Act of 1996 (“HIPAA”), Pub.L. 104-191, 110 Stat. 1936,
and New York State Department of Corrections and
Community Supervision (“DOCCS”) regulations. Compl.
at 20. Plaintiff wrote to defendant Schroyer about the
problem with his medical records. Id. at 35. Plaintiff
wrote to defendant Kornigsmann on May 13, 2012
about the misconduct of defendants Grinsberg, Lashway,
Travers, and Marlow regarding violating HIPAA and
state regulations, but he did not respond. Id. at 27.
Grinsberg responded to plaintiff telling him that there is
no provision allowing him to send grievances directly to
the Central Office. Id. at 29.

On August 27, 2012, defendants Forbes, Jarvis, and
Santamore refused to feed plaintiff his kosher meal at
dinner. Compl. at 40.

Plaintiff requests monetary damages. Compl. at 82. For a
more complete statement of plaintiff's claims, refer to the
complaint.

9. False Misbehavior Reports

12. Summary of Claims

False misbehavior reports were issued to plaintiff by
defendants Bilow and Wilson on November 14, 2012;
defendants Whitford and Tabb on December 3, 2012;
defendant Forbes on December 24, 2012; and defendant
Hungerford on January 2, 2013. Compl. at 55-59.

In deference to plaintiff's pro se status, the complaint
is liberally construed to assert the following claims:
(1) Eighth Amendment medical indifference claims
against defendants Travers, Lashway, Marlow, Smith,
Rock, Rabideau, Schroyer, Kornigsmann, Grinbergs,
Otis, Bellnier, Fischer, Waterson, Laramay, Quinn,
Bell, Evans, Kemp, Gonzalez, and Bosco; (2) Eighth
Amendment excessive force claims against defendants
Patterson, Marshall, Lipka, Tuper, Whitford, Greenizen,
Otis, Rock, Fischer, Oropallo, Zernia, Phillips, Grant,
Dunning, Richter, Sisto, Bellnier, and Uhler; (3) Eighth
Amendment conditions of confinement claims against
defendants Williams, Forbes, Jarvis, Santamore, Bilow,
Oropallo, and Greenizen; (4) Eighth Amendment claims
against defendants Rock, Kornigsmann, Fischer, Prack,
Bellnier, Schroyer, Otis, Lashway, Uhler, Travers, and
Lira relating to the restricted diet; (5) property destruction
claims against defendants Gokey and Garland; (6) First
Amendment mail interference claims against defendants
Forbes, Jarvis, Santamore, and Williams; (7) First
Amendment access to the courts claims against defendants
Wilson, Laramay, Gokey, Hungerford, Garland, and

10. Due Process
In August, 2012, defendant Lira presided as hearing
officer over three of plaintiff's disciplinary hearings.
Compl. at 47. Defendant Lira denied plaintiff due process
during the hearings because he denied plaintiff video tapes
and audio records of the alleged incidents, and found
plaintiff guilty without sufficient evidence. Id. Defendant
Lira sentenced plaintiff to seven days on the disciplinary
loaf diet for each of the hearings, amounting to twentyone days total, even though he knew that being on the loaf
caused harm to plaintiff and was not an adequate diet. Id.

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Phillips; (8) First Amendment retaliation claims against
defendants Travers, Lashway, Wilson, Gokey, and
Phillips; (9) interference with grievance claims against
defendants White, Woodward, Bellamy, and Cromp;
(10) claims that defendants Travers, Patterson, Bilow,
Lashway, Phillips, Gokey, and Marshall threatened
and harassed plaintiff; (11) First Amendment religion
claims against defendants Forbes, Jarvis, and Santamore;
(12) false misbehavior report claims against defendants
Whitford, Tabb, Forbes, Bilow, Wilson, and Hungerford;
(13) a Fourteenth Amendment due process claim against
defendant Lira; (14) claims that defendants Kornigsmann,
Grinbergs, Lashway, Travers, Marlow, Smith, Rabideau,
and Schroyer violated HIPAA and DOCCS regulations;
(15) Fourteenth Amendment Equal Protection claims;
(16) conspiracy claims; and (17) state law tort claims.

B. Analysis
Plaintiff brings this action pursuant to Section 1983,
which establishes a cause of action for “the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws” of the United States. In order to
maintain a Section 1983 action, a plaintiff must allege
two essential elements. First, “the conduct complained
of must have been committed by a person acting under
color of state law.” Pitchell v. Callan, 13 F.3d 545, 547
(2d Cir. 1994). Second, “the conduct complained of must
have deprived a person of rights, privileges or immunities
secured by the Constitution or laws of the United States.”
Id.
It is well settled that “personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to
an award of damages under § 1983.” Wright v. Smith, 21
F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of
Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)); Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009). “[A] Section 1983 plaintiff
must ‘allege a tangible connection between the acts of the
defendant and the injuries suffered.’ ” Austin v. Pappas,
No. 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar.
31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d
Cir. 1986)) (other citation omitted). “[V]icarious liability
is inapplicable to ... § 1983 suits.” Iqbal, 556 U.S. at 676.
Prior to Iqbal, the Second Circuit held that supervisory
personnel may be considered “personally involved” only if
they (1) directly participated in the violation, (2) failed to
remedy that violation after learning of it through a report
or appeal, (3) created, or allowed to continue, a policy or
custom under which the violation occurred, (4) had been

grossly negligent in managing subordinates who caused
the violation, or (5) exhibited deliberate indifference to
the rights of inmates by failing to act on information
indicating that the violation was occurring. Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing Williams
v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)). 5
5

The Second Circuit has not yet addressed how
the Supreme Court's decision in Iqbal affected
the standards in Colon for establishing supervisory
liability. See Grullon v. City of New Haven, 720
F.3d 133, 139 (2d Cir. 2013) (noting that Iqbal may
have “heightened the requirements for showing a
supervisor's personal involvement with respect to
certain constitutional violations” but not reaching
the impact of Iqbal on Colon because the complaint
“did not adequately plead the Warden's personal
involvement even under Colon”); see also Hogan
v. Fischer, 738 F.3d 509, 519 n.3 (2d Cir. 2013)
(expressing “no view on the extent to which [Iqbal]
may have heightened the requirements for showing
a supervisor's personal involvement with respect to
certain constitutional violations[.]” (citing Grullon,
720 F.3d at 139)).

1. Eighth Amendment Medical Indifference Claims
*7 To state an Eighth Amendment claim for medical
indifference, a plaintiff must allege that the defendant
was deliberately indifferent to a serious medical need.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate
indifference has two necessary components, one objective
and the other subjective. Hathaway v. Coughlin, 99
F.3d 550, 553 (2d Cir. 1996). The objective component
of an Eighth Amendment deliberate indifference claim
“requires that the alleged deprivation must be sufficiently
serious, in the sense that a condition of urgency, one
that may produce death, degeneration, or extreme pain
exists.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)
(quoting Hathaway, 99 F.3d at 553) (internal quotation
marks omitted). Under the subjective element, medical
mistreatment rises to the level of deliberate indifference
only when it “involves culpable recklessness, i.e., an act or
a failure to act ... that evinces ‘a conscious disregard of a
substantial risk of serious harm.’ ” Chance v. Armstrong,
143 F. 3d 698, 703 (2d Cir. 1998) (quoting Hathaway, 99
F.3d at 553). “Deliberate indifference requires more than
negligence but less than conduct undertaken for the very
purpose of causing harm.” Hathaway, 37 F.3d at 66. To

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assert a claim for deliberate indifference, an inmate must
allege that (1) a prison medical care provider was aware
of facts from which the inference could be drawn that the
inmate had a serious medical need; and (2) the medical
care provider actually drew that inference. Farmer, 511
U.S. at 837; Chance, 143 F.3d at 702. The inmate
must also demonstrate that the provider consciously and
intentionally disregarded or ignored that serious medical
need. Farmer, 511 U.S. at 835; see also Blyden v. Mancusi,
186 F.3d 252, 262 (2d Cir. 1999) (With respect to the
subjective element, a plaintiff must also demonstrate
that defendant had “the necessary level of culpability,
shown by actions characterized by ‘wantonness.’ ”). An
“inadvertent failure to provide adequate medical care”
does not constitute “deliberate indifference.” Estelle v.
Gamble, 429 U.S. 97, 105-06 (1976).
Plaintiff alleges that defendants Travers, Marlow,
Lashway, and Waterson denied him adequate medical
care for various medical issues including, but not
limited to, chronic pain, rectal bleeding, vision problems,
migraines, side-effects suffered as a result of being placed
on the disciplinary loaf diet, and injuries suffered from
an assault by staff. Compl. at 36-37, 38, 40-42, 45, 47,
50, 54, and 65. Plaintiff also claims that he reported the
misconduct of defendants Travers, Marlow, and Lashway
to defendants Fischer, Rock, Schroyer, Kornigsmann,
Grinbergs, Smith, Rabideau, Otis, Bellnier, Greenizen,
Uhler, Laramay, Quinn, and Bell (see Compl. at 15,
24-26, 34, 38, 47, and 67) but they failed to correct the
misconduct. Mindful of the Second Circuit's direction
that a pro se plaintiff's pleadings must be liberally
construed, see e.g. Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir. 2008), the Court finds that
plaintiff's Eighth Amendment medical indifference claims
against defendants Travers, Marlow, Lashway, Waterson,
Fischer, Rock, Schroyer, Kornigsmann, Grinbergs,
Smith, Rabideau, Otis, Bellnier, and Uhler survive sua
sponte review and require a response. In so ruling, the
Court expresses no opinion as to whether these claims can
withstand a properly filed dispositive motion.
With respect to defendants Laramay, Quinn, Bell,
Greenizen, whom plaintiff identifies respectively as two
Lieutenants, a Captain, and a Sergeant, there are no
facts to plausibly suggest that they had the authority or
the ability to correct alleged misconduct by the medical
staff. Accordingly, plaintiff's Eighth Amendment medical
indifference claims against defendants Laramay, Quinn,

Bell, and Greenizen are dismissed pursuant to 28 U.S.C.
§ 1915A(b) for failure to state a claim upon which relief
may be granted.
Finally, plaintiff claims that defendants Evans, Kemp,
Gonzalez, and Bosco failed to provide him with
adequate mental health care. Compl. at 68. Conclusory
allegations that defendants were aware of a plaintiff's
medical needs and failed to provide adequate care are
generally insufficient to state an Eighth Amendment
claim of inadequate medical care. See, e.g., Gumbs v.
Dynan, No. 11-CV-0857, 2012 WL 3705009, at *12
(E.D.N.Y. Aug. 26, 2012) (“conclusory allegations that
the defendants were aware of plaintiff's medical needs
and chronic pain but failed to respond are generally
not sufficient proof of defendant's deliberate indifference
and cannot survive a Rule 12(b)(6) motion to dismiss”)
(citing Adekoya v. Holder, No. 09 Civ 10325, 751 F.
Supp. 2d 688, 691 (S.D.N.Y. Nov. 12, 2010) (finding
conclusory allegations that medical staff defendants
were aware of plaintiff's medical needs and failed to
provide adequate care insufficient to defeat a motion to
dismiss a claim of inadequate medical care)). There is
also nothing to plausibly suggest that these defendants
exhibited the requisite state of mind to sustain an Eighth
Amendment deliberate indifference claim. Therefore,
plaintiff's Eighth Amendment medical indifference claims
against defendants Evans, Kemp, Gonzalez, and Bosco
are dismissed pursuant to 28 U.S.C. § 1915A(b) for failure
to state a claim upon which relief may be granted.

2. Eighth Amendment Excessive Force Claims
*8 The Eighth Amendment protects prisoners from
“cruel and unusual punishment” at the hands of prison
officials. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991);
Estelle, 429 U.S. at 104. This includes punishments
that “involve the unnecessary and wanton infliction of
pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976).
The Eighth Amendment's prohibition against cruel and
unusual punishment encompasses the use of excessive
force against an inmate, who must prove two components:
(1) subjectively, that the defendant acted wantonly and in
bad faith, and (2) objectively, that the defendant's actions
violated “contemporary standards of decency.” Blyden v.
Mancusi, 186 F.3d 252, 262-63 (2d Cir. 1999) (internal
quotations omitted) (citing Hudson v. McMillian, 503 U.S.
1, 8 (1992)). 6

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6

In this regard, while “a de minimis use of force will
rarely suffice to state a constitutional claim,” Romano
v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993), the
malicious use of force to cause harm constitutes an
Eighth Amendment violation per se because in such
an instance “contemporary standards of decency are
always violated.” Blyden, 186 F.3d at 263 (citing
Hudson, 503 U.S. at 9). The key inquiry into a claim
of excessive force is “whether force was applied in a
good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Hudson,
503 U.S. at 7 (citing Whitley v. Albers, 475 U.S. 312,
321-22 (1986)); see also Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir. 1973).

Mindful of the Second Circuit's direction that a pro
se plaintiff's pleadings must be liberally construed, see
e.g. Sealed Plaintiff, 537 F.3d at 191, the Court finds
that plaintiff's Eighth Amendment excessive force claims
against defendants Patterson, Marshall, Lipka, Tuper,
Whitford, Greenizen, Otis, Rock, Zernia, Phillips, Grant,
Dunning, Richter, and Sisto survive sua sponte review
and require a response. In so ruling, the Court expresses
no opinion as to whether these claims can withstand a
properly filed dispositive motion.
Plaintiff's Eighth Amendment excessive force claims
against defendants Fischer, Oropallo, Bellnier, and Uhler
stand on a different footing. Construing the complaint
liberally, plaintiff alleges that after he was assaulted by
staff on December 3, 2012, he notified these defendants
about an alleged assault and they failed to take corrective
measures. Compl. at 56-57. Plaintiff does not contend that
defendants Fischer, Oropallo, Bellnier, or Uhler directly
participated in the alleged constitutional violation, namely
plaintiff's December 3, 2012 assault. Rather, the gravamen
of plaintiff's complaint against these defendants is that he
advised of them of misconduct after the fact. However,
“[i]f 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.” Harnett v. Barr, 538 F. Supp. 2d 511, 524
(N.D.N.Y. 2008); see also Young v. Kihl, 720 F. Supp. 22,
23 (W.D.N.Y. 1989) (“[T]he wrong ... [must] have been
capable of mitigation at the time the supervisory official
was apprised thereof ... Without such caveat, the personal
involvement doctrine may effectively and improperly be
transformed into one of respondeat superior.”); Jackson
v. Burke, 256 F.3d 93, 96 (2d Cir. 2001) (“[A] ‘failure to
remedy’ theory of liability is not available with respect to

discrete and completed violations.”). Thus, here, because
the assault had already occurred, defendants Fischer,
Oropallo, Bellnier, and Uhler cannot be held liable on the
basis of a failure to correct. Accordingly, plaintiff's Eighth
Amendment excessive force claims against defendants
Fischer, Oropallo, Bellnier, and Uhler are dismissed
pursuant to 28 U.S.C. § 1915A(b) for failure to state a
claim upon which relief may be granted.

3. Eighth Amendment Conditions of Confinement Claims
*9 The Eighth Amendment explicitly prohibits the
infliction of “cruel and unusual punishment.” U.S. Const.
amend. VIII. The Second Circuit, in addressing the
needs protected by the Eighth Amendment, has stated
that sentenced prisoners are entitled to “adequate food,
clothing, shelter, sanitation, medical care and personal
safety.” Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir. 1978),
rev'd on other grounds sub nom. Bell v. Wolfish, 441
U.S. 520 (1979); Lareau v. Manson, 651 F.2d 96, 106
(2d Cir. 1981). “To the extent that such conditions are
restrictive and even harsh, they are part of the penalty that
criminal offenders pay for their offenses against society.”
Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Not every
governmental action affecting the interests or well-being
of a prisoner is actionable under the Eighth Amendment.
“To be cruel and unusual punishment, conduct that does
not purport to be punishment at all must involve more
than ordinary lack of due care for the prisoner's interests
or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986); see
also Gaston v. Coughlin, 249 F.3d 156, 163 (2d Cir. 2001).
To demonstrate that the conditions of confinement
constitute cruel and unusual punishment in violation
of the Eighth Amendment, a plaintiff must satisfy
both an objective and subjective element. See Jolly v.
Coughlin, 76 F.3d 468, 480 (2d Cir. 1996). A plaintiff
must demonstrate that (1) the conditions of confinement
resulted in “unquestioned and serious deprivations of
basic human needs,” Anderson v. Coughlin, 757 F.2d 33,
35 (2d Cir. 1985); see also Jolly, 76 F.3d at 480, and (2)
that the defendants acted with “deliberate indifference.”
Wilson v. Seiter, 501 U.S. 294, 303-04 (1991).
Plaintiff's allegations that defendants Forbes, Jarvis,
and Santamore denied him dinner and general library
materials on one day and closed the “vision panel” on
his cell door, see Compl. at 40, do not plausibly suggest

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that these defendants deprived plaintiff of basic human
needs. See Rhodes, 452 U.S. at 347 (Routine discomfort
and restrictive or even harsh prison conditions “are part of
the penalty that criminal offenders pay for their offenses
against society.”); see also Hudson, 503 U.S. at 9. Plaintiff's
allegations also do not plausibly suggest that these
defendants acted with the requisite deliberate indifference.
Accordingly, the Eighth Amendment conditions of
confinement claims against defendants Forbes, Jarvis,
and Santamore are dismissed pursuant to 28 U.S.C. §
1915A(b) for failure to state a claim upon which relief may
be granted.
Mindful of the Second Circuit's direction that a pro se
plaintiff's pleadings must be liberally construed, see e.g.
Sealed Plaintiff, 537 F.3d at 191, the Court finds that
plaintiff's Eighth Amendment conditions of confinement
claims against defendants Williams, Bilow, Oropallo, and
Greenizen, see Compl. at 32, 53-54, survive sua sponte
review and require a response. In so ruling, the Court
expresses no opinion as to whether these claims can
withstand a properly filed dispositive motion.

be the basis for constitutional claims if sufficient post
deprivation remedies are available to address the claim.
Hudson v. Palmer, 468 U.S. 517, 531 (1984) (citing Parratt
v. Taylor, 451 U.S. 527, 541 (1981)); see also Rivera-Powell
v. New York City Bd. of Elections, 470 F.3d 458, 465
(2d Cir. 2006) (“When the state conduct in question is
random and unauthorized, the state satisfies procedural
due process requirements so long as it provides meaningful
post deprivation remedy.”). “New York in fact affords
an adequate post-deprivation remedy in the form of,
inter alia, a Court of Claims action.” Jackson v. Burke,
256 F.3d 93, 96 (2d Cir. 2001); Davis v. New York, 311
Fed.Appx. 397, 400 (2d Cir. 2009) (“The existence of
this adequate post-deprivation state remedy would thus
preclude [plaintiff's] due process claim under § 1983 [for
lost personal property].”).
The destruction of property claims against defendants
Gokey and Garland are dismissed pursuant to 28 U.S.C.
§ 1915A(b) for failure to state a claim under Section 1983
upon which relief may be granted.

6. First Amendment Mail Interference Claims
4. Restricted Diet Claims
The Eighth Amendment requires “nutritionally adequate
food that is prepared and served under conditions which
do not present an immediate danger to the health and
well being of the inmates who consume it.” Robles v.
Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (per curiam)
(internal quotation marks omitted); see also Willey v.
Kirkpatrick, 801 F.3d 51, 61 (2d Cir. 2015). Plaintiff
alleges that the food that he was served when placed
on the restricted diet was nutritionally inadequate and
caused him physical harm. In light of Sealed Plaintiff,
537 F.3d at 191, the Court finds that plaintiff's Eighth
Amendment restricted diet claims against defendants
Rock, Kornigsmann, Fischer, Prack, Bellnier, Schroyer,
Otis, Lashway, Uhler, Travers, and Lira survive sua
sponte review and require a response. In so ruling, the
Court expresses no opinion as to whether these claims can
withstand a properly filed dispositive motion.

5. Destruction of Property Claims
*10 The Supreme Court has held that the unauthorized
intentional destruction of prisoner's property may not

The First Amendment protects an inmate's right to send
and receive both legal and nonlegal mail, although prison
officials may regulate that right if the restrictions they
employ are “ ‘reasonably related to legitimate penological
interests.’ ” Thornburgh v. Abbott, 490 U.S. 401, 409
(1989) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987));
see Johnson v. Goord, 445 F.3d 532, 534 (2d Cir. 2006)
(holding that prisoners do have a right – albeit a limited
one – to send and receive mail (citation omitted)). Legal
mail is entitled to greater protection from interference
than nonlegal mail. See Davis v. Goord, 320 F.3d 346,
351 (2d Cir. 2003) (citations omitted). A single instance
of mail tampering that does not result in the plaintiff
suffering any damage is generally insufficient to support
a constitutional challenge. See Morgan v. Montanye, 516
F.2d 1367, 1371 (2d Cir. 1975). 7 “Rather, the inmate
must show that prison officials ‘regularly and unjustifiably
interfered with the incoming legal mail.’ ” Davis, 320
F.3d at 351 (quoting Cancel v. Goord, No. 00 CIV
2042, 2001 WL 303713, at *6 (S.D.N.Y. Mar. 29, 2001)
(citing Washington v. James, 782 F.2d 1134,1139 (2d Cir.
1986))). Indeed, courts have consistently applied Morgan
to dismiss suits by inmates alleging unconstitutional
opening of their legal mail without any showing of

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damages. See Pacheo v. Comisse, 897 F. Supp. 671, 681
(N.D.N.Y. 1995) (dismissing inmate's claim based on a
single instance in which defendants allegedly opened his
legal mail outside of his presence because “he has shown
no prejudice as a result of the allegedly unauthorized
opening”); Walton v. Waldron, 886 F. Supp. 981, 986
(N.D.N.Y. 1995) (“Existing precedent on an inmate's
claim that his ‘legal’ mail has been improperly handled by
prison officials requires a showing of harm.”); Gittens v.
Sullivan, 670 F. Supp. 119, 124 (S.D.N.Y. 1987), aff'd, 848
F.2d 389 (2d Cir. 1988) (holding that inmate's allegation
that his legal mail was “interfered with on one occasion
is insufficient to state a cause of action given that the
interference complained of did not affect plaintiff's access
to the courts”).
7

To the extent that plaintiff may be attempting to
assert that he was denied access to the courts as a
result of this mail interference, that purported claim
is discussed below.

Plaintiff alleges that on May 16, 2012, defendant Williams
threw a piece of plaintiff's legal mail in the trash, Compl.
at 29, and on August 27, 2012, defendants Forbes, Jarvis,
and Santamore did not give plaintiff his incoming mail,
id. at 40. Even accepting as true all of the allegations
in plaintiff's complaint and drawing all inferences in
plaintiff's favor, plaintiff has alleged only that each of
the forgoing defendants interfered with his mail on one
occasion, and there is nothing to plausibly suggest that
any single instance of mail interference caused plaintiff to
suffer a constitutionally significant injury.
*11 Accordingly, the First Amendment mail interference
claims against defendants Williams, Forbes, Jarvis, and
Santamore are dismissed pursuant to 28 U.S.C. §
1915A(b) for failure to state a claim upon which relief may
be granted.

7. First Amendment Access to the Courts Claims
It is well settled that inmates have a First Amendment
right to “petition the Government for a redress of
grievances.” 8 This right, which is more informally
referred to as a “right of access to the courts,”
requires States “to give prisoners a reasonably adequate
opportunity to present claimed violations of fundamental
constitutional rights.” Bounds v. Smith, 430 U.S. 817, 828

(1977), modified on other grounds, Lewis v. Casey, 518 U.S.
343, 350 (1996); see also Bourdon v. Loughren, 386 F.2d 88,
92 (2d Cir. 2004). “However, this right is not ‘an abstract,
freestanding right ....’ and cannot ground a Section 1983
claim without a showing of ‘actual injury.’ ” Collins v.
Goord, 438 F. Supp. 2d 399, 415 (S.D.N.Y. 2006) (quoting
Lewis, 518 U.S. at 351).
8

See U.S. Const. amend. I (“Congress shall make
no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the
Government for a redress of grievances.”).

To state a claim for denial of access to the courts,
a plaintiff must assert non-conclusory allegations
demonstrating both (1) that the defendant acted
deliberately and maliciously, and (2) that the plaintiff
suffered an actual injury. Lewis, 518 U.S. at 353. “A
hypothetical injury is not sufficient to state a claim for
violation of the right of access to the courts.” Amaker
v. Haponik, No. 98 Civ. 2663, 1999 WL 76798, at
*3 (S.D.N.Y. Feb. 17, 1999). Instead, a plaintiff must
demonstrate “actual injury” by establishing that the denial
“hindered his efforts” to pursue a non-frivolous legal
claim. Lewis, 518 U.S. at 349, 351-53. “Mere ‘delay in
being able to work on one's legal action or communicate
with the courts does not rise to the level of a constitutional
violation.’ ” Davis, 320 F.3d at 352 (citing Jermosen v.
Coughlin, 877 F. Supp. 864, 871 (S.D.N.Y. 1995)).
The Supreme Court has stated that in order to allege a
denial of access to the courts claim, “the underlying cause
of action, whether anticipated or lost, is an element that
must be described in the complaint ....” Christopher v.
Harbury, 536 U.S. 403, 415 (2002). The Supreme Court
instructed that the underlying claim “must be described
well enough to apply the ‘nonfrivolous' test and to show
that the ‘arguable’ nature of the underlying claim is more
than hope.” Id. at 415-16. “[T]he complaint should state
the underlying claim in accordance with Federal Rule of
Civil Procedure 8(a), just as if it were being independently
pursued, and a like plain statement should describe any
remedy available under the access claim and presently
unique to it.” Id. at 417-18 (footnote omitted).
Here, plaintiff alleges only that he was denied legal
materials and supplies, and some of his legal papers
were destroyed. Compl. at 16, 21-23, 30, 40, 49, 50-52,

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59-60. Even accepting plaintiff's allegations as true, he
nevertheless offers no facts to suggest how the denial or
destruction of legal materials “prejudiced his ability to
seek redress from the judicial system.” Smith v. O'Connor,
901 F. Supp. 644, 649 (S.D.N.Y. 1995). Plaintiff fails to
provide any information in the complaint about the basis
of any court action or proceeding which was actually
frustrated as a result of the loss or destruction of legal
materials. See Christopher, 536 U.S. at 416 (“Like any
other element of an access claim, the underlying cause
of action and its lost remedy must be addressed by
allegations in the complaint sufficient to give fair notice
to a defendant.”) (citing Swierkiewicz v. Sorema N.A., 534
U.S. 506, 513-515 (2002)). Simply stated, plaintiff fails to
allege any facts to plausibly suggest that a non-frivolous
claim was actually hindered or prejudiced because of the
alleged denial of access to legal materials. See Lewis,
518 U.S. at 360 n.7 (“Courts have no power to presume
and remediate harm that has not been established.”);
Arce v. Walker, 58 F. Supp. 2d 39 (W.D.N.Y. 1999) (“a
prisoner's conclusory assertion that he suffered prejudice
does not suffice to support an access to courts claim ...
some showing of impaired access is required”); see also
Davis, 320 F.3d at 352 (“Mere ‘delay in being able to ...
communicate with the courts does not rise to the level of
a constitutional violation.’ ”).
*12 Accordingly, plaintiff's First Amendment access to
the courts claims against defendants Wilson, Laramay,
Gokey, Hungerford, Garland, and Phillips do not survive
sua sponte review and are dismissed pursuant to 28 U.S.C.
§ 1915A(b) for failure to state a claim upon which relief
may be granted.

8. First Amendment Retaliation Claims
Courts must approach claims of retaliation “ ‘with
skepticism and particular care’ because ‘virtually any
adverse action taken against a prisoner by a prison
official–even those otherwise not rising to the level
of a constitutional violation–can be characterized as
a constitutionally proscribed retaliatory act.’ ” Davis,
320 F.3d at 352 (quoting Dawes v. Walker, 239 F.3d
489, 491 (2d Cir. 2001), overruled on other grounds,
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)).
To state a plausible claim, a plaintiff asserting a
First Amendment retaliation claim must advance “nonconclusory” allegations establishing “(1) that the speech

or conduct at issue was protected, (2) that the defendant
took adverse action against the plaintiff, and (3) that there
was a causal connection between the protected speech [or
conduct] and the adverse action.” Davis, 320 F.3d at 352
(quoting Dawes, 239 F.3d at 492). “[A] complaint which
alleges retaliation in wholly conclusory terms may safely
be dismissed on the pleadings alone.” Flaherty v. Coughlin,
713 F.2d 10, 13 (2d Cir. 1983).
Plaintiff alleges that he filed grievances against defendants
Travers and Lashway on April 17, 2012, and November
27, 2012. Compl. at 38, 54. Plaintiff filed a grievance
against defendant Travers on June 14, 2012, and against
defendant Lashway on June 15, 2012. Id. at 21-22.
Plaintiff also filed a lawsuit against defendant Lashway
in 2008, which was settled in 2010; defendant Lashway
mentioned the lawsuit to plaintiff and said that she
remembered him. Id. at 12-13. From November, 2012,
through February, 2013, plaintiff claims that defendants
Travers and Lashway denied him adequate medical care.
See, e.g. Compl. at 12-13, 18-19, 36-38, 50.
Plaintiff filed grievances against defendant Wilson on
March 10, 2012, April 9, 2012, and April 25, 2012. Compl.
at 16, 22-23. On October 12, 2012, defendant Wilson
intentionally destroyed some of plaintiff's legal documents
because he saw that his name was mentioned in them and
allegedly in retaliation for plaintiff's grievances. Id. at 51.
On October 24, 2012, defendant Gokey threatened to
harm plaintiff because plaintiff had filed a grievance
against him. Compl. at 50. Defendant Gokey told plaintiff
that his “time [will come] very soon” and he ripped
up plaintiff's law library slip. Id. On January 24, 2013,
defendant Gokey destroyed some of plaintiff's legal papers
and personal property. Id. at 61. Plaintiff complained to
defendant Phillips, the block officer, and he told plaintiff
that's what happens when you file grievances. Id. at 62.
In light of Sealed Plaintiff, 537 F.3d at 191, the
Court finds that the First Amendment retaliation claims
against defendants Travers, Lashway, Wilson, Gokey,
and Phillips survive sua sponte review and require a
response. In so ruling, the Court expresses no opinion as
to whether these claims can withstand a properly filed
dispositive motion.

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9. Interference with Grievance Claims

11. First Amendment Religion Claims

*13 It is well-established that a prison inmate has no
constitutional right of access to such an internal grievance
process. Rhodes v. Hoy, No. 9:05-CV-0836 (FJS/DEP),
2007 WL 1343649, at *6 (N.D.N.Y. May 5, 2007) (noting
that inmates have “no constitutional right of access
to the established inmate grievance program”); Davis
v. Buffardi, No. 9:01-CV-0285 (PAM/GJD), 2005 WL
1174088, at *3 (N.D.N.Y. May 4, 2005) (“[P]articipation
in an inmate grievance process is not a constitutionally
protected right.”); Cancel, 2001 WL 303713, at *3 (holding
that “inmate grievance procedures are not required by
the Constitution” and therefore failure to see to it that
grievances are properly processed does not create a
claim under Section 1983). Simply stated, there is no
underlying constitutional obligation to afford an inmate
meaningful access to the internal grievance procedure, or
to investigate and properly determine any such grievance.

The First Amendment Free Exercise Clause guarantees
the right to free exercise of religion. Cutter v. Wilkinson,
544 U.S. 709, 719 (2005). The Free Exercise Clause, and
the First Amendment generally, applies to prison inmates,
subject to certain limitations. Ford v. McGuinnis, 352
F.3d 582, 588 (2d Cir. 2003) (“Prisoners have long been
understood to retain some measure of the constitutional
protection afforded by the First Amendment's Free
Exercise Clause.”) (citing Pell v. Procunier, 417 U.S. 817,
822 (1974)). “[A] prisoner has a right to a diet consistent
with his or her religious scruples.” Ford v. McGinnis, 352
F.3d 582, 597 (2d Cir. 2003). To state a claim under the
First Amendment Free Exercise Clause, a plaintiff must
demonstrate that his or her sincerely held religious beliefs
were substantially burdened by defendant's conduct.
Singh v. Goord, 520 F. Supp. 2d 487, 498, 509 (S.D.N.Y.
2007); see also Salahuddin v. Goord, 467 F.3d at 274-75
(To prevail on a free-exercise claim, a prisoner “must show
at the threshold that the disputed conduct substantially
burdens his sincerely held religious beliefs.”). In order to
be considered a “substantial burden,” the plaintiff “must
demonstrate that the government's action pressure[d] him
to commit an act forbidden by his religion or prevent[ed]
him from engaging in conduct or having a religious
experience mandated by his faith.” Muhammad v. City of
New York Dep't of Corr., 904 F. Supp. 161, 188 (S.D.N.Y.
1995) (citations omitted). The burden must be more than
an inconvenience, it must substantially interfere with a
tenet or belief that is central to the religious doctrine. Id.

Plaintiff's interference with grievance claims against
defendants White, Woodward, Bellamy, and Cromp do
not survive sua sponte review and are dismissed pursuant
to 28 U.S.C. § 1915A(b) for failure to state a claim upon
which relief may be granted.

10. Verbal Threats and Harassment
Verbal threats and harassment, absent physical injury,
are not constitutional violations cognizable under Section
1983. Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986)
(per curiam); Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460,
474 (S.D.N.Y. 1998) (“verbal 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”) (quotation omitted); Rivera v. Goord, 119
F. Supp. 2d 327, 342 (S.D.N.Y. 2000) (collecting cases).
Accordingly, plaintiff's claims that defendants Travers,
Patterson, Bilow, Lashway, Phillips, Gokey, and Marshall
verbally threatened and harassed him are dismissed
pursuant to 28 U.S.C. § 1915A(b) for failure to state a
claim upon which relief may be granted.

*14 Here, plaintiff fails to identify his religion, thus
making it impossible for the Court to determine if the
denial of one kosher meal placed a substantial burden on
his religious beliefs. Plaintiff alleges no facts to suggest
that defendants interfered with a tenet or belief that is
central to any religious doctrine. Accordingly, plaintiff's
First Amendment free exercise claims against defendants
Forbes, Jarvis, and Santamore are dismissed pursuant to
28 U.S.C. § 1915A(b) for failure to state a claim upon
which relief may be granted.

12. False Misbehavior Reports
It is well settled that “a prison inmate has no general
constitutional right to be free from being falsely accused

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in a misbehavior report.” Boddie v. Schnieder, 105 F.3d
857, 862 (2d Cir. 1997) (citing Freeman v. Rideout, 808
F.2d 949, 951 (2d Cir. 1986)); accord, Pittman v. Forte, No.
9:01-CV-0100, 2002 WL 31309183, at *5 (N.D.N.Y. July
11, 2002) (Sharpe, M.J.); see also Santana v. Olson, No.
07-CV-0098, 2007 WL 2712992, at *2 (W.D.N.Y. Sept.
13, 2007) (“[T]he filing of a false behavior report by a
correctional officer does not state a claim for relief.”). The
only way that false accusations contained in a misbehavior
report can rise to the level of a constitutional violation
is when there has been more such as “retaliation against
the prisoner for exercising a constitutional right.” Boddie,
105 F.3d at 862. In addition, “[t]he filing of a false report
does not, of itself, implicate the guard who filed it in
constitutional violations which occur at a subsequent
disciplinary hearing.” 9 Williams v. Smith, 781 F.2d 319,
324 (2d Cir. 1986) (rejecting prisoner's “but for” argument
as to guard who prepared misbehavior report but was not
involved in Tier III hearing) (citation omitted).
9

“The only constitutional violation that could occur in
this situation is if plaintiff were not provided adequate
due process in any proceeding which is based upon
the misbehavior report. In that case, the claim is not
based on [the] truth or falsity of the misbehavior
report but instead on the conduct of the hearing
itself.” Santana, 2007 WL 2712992, at *2.

Plaintiff's claims that defendants Whitford, Tabb,
Forbes, Bilow, Wilson, and Hungerford issued him false
misbehavior reports are dismissed pursuant to 28 U.S.C.
§ 1915A(b) for failure to state a claim upon which relief
may be granted.

13. Fourteenth Amendment Due Process Claim
“A prisoner's liberty interest is implicated by prison
discipline, such as SHU confinement, only if the discipline
‘imposes [an] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison
life’....” Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004)
(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
Here, defendant Lira found plaintiff guilty of misconduct
as a result of each of the three disciplinary hearings and
after each hearing sentenced plaintiff to seven days of the
disciplinary diet. The Second Circuit has held that the
imposition of a loaf diet does not impose an atypical and
significant hardship on inmates, even where the inmate

alleges that the diet caused severe stomach pain and weight
loss. McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004)
(finding that a seven-day post-hearing restricted diet did
not impose an atypical and significant hardship).
Based upon the foregoing, the Fourteenth Amendment
due process claims against defendant Lira are dismissed
pursuant to U.S.C. § 1915A(b) for failure to state a claim
upon which relief may be granted.

14. Denial of Access to Medical Records
*15 Insofar as plaintiff's complaint could be liberally
construed to allege a claim under the HIPAA, “Congress
did not intend to create a private right of action through
which individuals can enforce HIPAA's provisions.”
Pecou v. Forensic Comm. Personnel, No. 06-CV-3714,
2007 WL 1490450, at *2 (E.D.N.Y. Jan. 5, 2007) (citing
Barnes v. Glennon, No. 9:05-CV-0153 (LEK/RFT), 2006
WL 2811821, at *5 (N.D.N.Y. Sept. 28, 2006) (The
HIPAA statute does not “either explicitly or implicitly,
confer to private individuals a right of enforcement.”);
University of Colorado Hosp. Auth. v. Denver Publ'g Co.,
340 F. Supp. 2d 1142, 1144 (D. Colo. 2004) (finding no
evidence that Congress intended to create a private right
of action under HIPAA)). Accordingly, plaintiff may not
maintain a claim for the alleged denial of access to his
medical records under HIPAA.
Construing the complaint liberally, plaintiff also claims
that defendants Kornigsmann, Grinbergs, Lashway,
Travers, Marlow, Smith, Rabideau, and Schroyer violated
DOCCS regulations. A Section 1983 claim brought in
federal court is not the appropriate forum to raise
violations of prison regulations or state law. See Hyman
v. Holder, No. 96 Civ. 7748, 2001 WL 262665, at *6
(S.D.N.Y. Mar. 15, 2001) (the failure to follow a New
York State DOCCS Directive or prison regulation does
not give rise to a federal constitutional claim); see also
Patterson v. Coughlin, 761 F.2d 886, 891 (2d Cir. 1985)
(“[A] state employee's failure to conform to state law
does not itself violate the Constitution and is not alone
actionable under § 1983 ....”); Fluent v. Salamanca Indian
Lease Auth., 847 F. Supp. 1046, 1056 (W.D.N.Y. 1994)
(Section 1983 imposes liability for violations of rights
protected by the Constitution and laws of the United
States, not for violations arising solely out of state or
common-law principles).

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Thus, plaintiff's claims that defendants Kornigsmann,
Grinbergs, Lashway, Travers, Marlow, Smith, Rabideau,
and Schroyer violated HIPAA and DOCCS regulations
are dismissed pursuant to 28 U.S.C. § 1915A(b) for failure
to state a claim upon which relief may be granted.

15. Fourteenth Amendment Equal Protection Claims
The Equal Protection Clause requires that the government
treat all similarly situated people alike. City of Cleburne,
Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985). Specifically, the Equal Protection Clause “bars
the government from selective adverse treatment of
individuals compared with other similarly situated
individuals if ‘such selective treatment was based on
impermissible considerations such as race, religion, intent
to inhibit or punish the exercise of constitutional rights,
or malicious or bad faith intent to injure a person.’ ”
Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005)
(quoting LeClair v. Saunders, 627 F.2d 606, 609-10 (2d
Cir. 1980)). To state a viable claim for denial of equal
protection, a plaintiff generally must allege “purposeful
discrimination ... directed at an identifiable or suspect
class.” Giano v. Senkowski, 54 F.3d 1050, 1057 (2d
Cir. 1995). In the alternative, under a “class of one”
theory, plaintiff must allege that he has been intentionally
treated differently from others similarly situated, with no
rational basis for the difference in treatment. Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000); DeMuria
v. Hawkes, 328 F.3d 704, 706 (2d Cir. 2003).
Plaintiff's allegation that defendants denied him equal
protection is entirely conclusory, with no facts to support
any claim that he was discriminated against, or even to
suggest on what basis he was discriminated against. See
Compl. at 74 (alleging only that defendants “intentionally
discriminated against [him] and treated him differently
from other similarly situated inmates... [with] no rational
basis.”). See Iqbal, 556 U.S. at 678 (noting that a
pleading that only “tenders naked assertions devoid of
further factual enhancement” will not suffice) (internal
quotations and alterations omitted).
*16 As a result, plaintiff's Equal Protection claims are
dismissed pursuant to 28 U.S.C. § 1915A(b) for failure to
state a claim upon which relief may be granted.

16. Conspiracy Claims
A conspiracy claim under Section 1983 must allege that:
(1) an agreement existed between two or more state
actors to act in concert to inflict an unconstitutional
injury on plaintiff and (2) an overt act was committed
in furtherance of that goal. Ciambriello v. County of
Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). Vague and
conclusory allegations that defendants have engaged in a
conspiracy must be dismissed. Ciambriello, 292 F.3d at
325; see also Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.
1983) (“A complaint containing only conclusory, vague,
or general allegations of conspiracy to deprive a person
of constitutional rights cannot withstand a motion to
dismiss.”); Brown v. City of Oneonta, 106 F.3d 1125, 1133
(2d Cir. 1997) (complaints containing only conclusory,
vague or general allegations of a conspiracy to deprive a
person of constitutional rights do not state a claim for
relief). To state a conspiracy claim, plaintiff “must provide
some factual basis supporting a meeting of the minds.”
See Webb v. Goord, 340 F.3d 105, 110-11 (2d Cir. 2003).
Thus, plaintiff must “make an effort to provide some
details of time and place and the alleged effects of the
conspiracy ... [including] facts to demonstrate that the
defendants entered into an agreement, express or tacit, to
achieve the unlawful end.” Warren v. Fischl, 33 F. Supp.
2d 171, 177 (E.D.N.Y. 1999) (citations omitted).
Here, plaintiff does not assert any facts giving rise to
a conspiracy, but instead makes only vague statements
that defendants somehow conspired to deny him rights.
See Compl. at 81. There are no facts upon which it
may be plausibly inferred that the defendants came to
an agreement, or a “meeting of the minds,” to violate
his constitutional rights. See Iqbal, 556 U.S. at 680-81
(allegations that the defendants “willfully and maliciously
agreed to subject” the plaintiff to harsh conditions of
confinement “solely on account of his religion, race, and/
or national origin” found conclusory); Gallop v. Cheney,
642 F.3d 364, 369 (2d Cir. 2011) (finding allegations of
conspiracy “baseless” where the plaintiff “offer[ed] not a
single fact to corroborate her allegation of a ‘meeting of
the minds' among the conspirators”); Boddie v. Schnieder,
105 F.3d 857, 862 (2d Cir. 1997) (dismissal of “conclusory,
vague or general allegations of conspiracy to deprive a
person of constitutional rights” is proper).

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Plaintiff's conspiracy claims are dismissed pursuant to 28
U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted.

17. Defendants R. Isobella, Nason, and Spinner
The Court notes that there are no allegations of
wrongdoing against defendants R. Isobella, Nason, and
Spinner in the body of the complaint. “Dismissal is
appropriate where a defendant is listed in the caption,
but the body of the complaint fails to indicate what
the defendant did to the plaintiff.” Cipriani v. Buffardi,
No. 9:06-CV-889 (GTS/DRH), 2007 WL 607341, at *1
(N.D.N.Y. Feb. 20, 2007) (citing Gonzalez v. City of
New York, No. 97 CIV. 2246, 1998 WL 382055, at *2
(S.D.N.Y. Jul. 9, 1998)); see also Crown v. Wagenstein,
No. 96 CIV. 3895, 1998 WL 118169, at *1 (S.D.N.Y. Mar.
16, 1998) (mere inclusion of warden's name in complaint
insufficient to allege personal involvement); Taylor v. City
of New York, 953 F. Supp. 95, 99 (S.D.N.Y. 1997) (same).
*17 Accordingly, R. Isobella, Nason, and Spinner are
dismissed as defendants to this action.

and maintained in the court of claims as a claim against
the state.
N.Y. Correct. Law § 24. “[T]he Second Circuit has held
that the immunity from suit in state court provided to
[DOCCS] employees by § 24 extends to suits for tort claims
based on state law against [DOCCS] employees in federal
court.” Brown v. Dep't of Corr. Servs., No. 09 Civ. 949,
2011 WL 2182775, at *9 (W.D.N.Y. June 2, 2011) (citing
Baker v. Coughlin, 77 F.3d 12, 14 (2d Cir. 1996)). Nothing
in the complaint suggests that the DOCCS defendants
acted outside the scope of their employment in connection
with state law tort claims asserted by plaintiff. See Compl.
at 76-80. Thus, to the extent plaintiff seeks monetary
damages from the DOCCS defendants in their personal
capacities, plaintiff's state law tort claims are barred
by N.Y. Correction Law § 24(1), and those claims are
dismissed without prejudice pursuant to N.Y. Correction
Law § 24(2).
Defendants Kemp, Gonzalez, and Bosco are identified by
plaintiff as employees of the New York State Office of
Mental Health (“OMH”). Compl. at 7-8. 11 New York
State Mental Hygiene Law § 19.14 states in relevant part:
(a) No civil action shall be brought in any court of the
state, except by the attorney general on behalf of the
state, against an officer or employee of the office who
is charged with the duty of securing the custody of a
person in need of care and treatment for alcoholism in
his personal capacity for damages arising out of any act
done or the failure to perform any act within the scope
of employment and in the discharge of official duties by
such officer or employee.

18. State Law Tort Claims
Plaintiff asserts state law tort claims. Compl. at 76-80. 10
10

Plaintiff asserts claims for Intentional and Negligent
Infliction of Emotional Distress, Assault, Battery,
and False Imprisonment under New York common
law. Id.

(b) Any claim for damages arising out of any act done
or the failure to perform any act within the scope of the
employment and in the discharge of the duties of such
officer or employee shall be brought and maintained in
the court of claims as a claim against the state.

Section 24 of the New York State Correction Law
provides in pertinent part:
1. No civil action shall be brought in any court of
the state ... against any officer or employee of the
department ... in his or her personal capacity, for
damages arising out of any act done or the failure to
perform any act within the scope of the employment
and in the discharge of the duties by such officer or
employee.
2. Any claim for damages arising out of any act done
or the failure to perform any act within the scope of the
employment and in the discharge of the duties of any
officer or employee of the department shall be brought

N.Y. Mental Hyg. Law § 19.14. Therefore, to the
extent plaintiff seeks monetary damages from the OMH
defendants in their personal capacities, plaintiff's state law
tort claims against them are barred by Mental Hyg. Law §
19.14(a), and those claims are dismissed without prejudice
pursuant to Mental Hyg. Law § 19.14(b).
11

Additionally, the Federal claims against defendants
Kemp, Gonzalez, and Bosco have been dismissed

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2016 WL 6127510
without prejudice therefore the Court would in any
event decline to exercise supplemental jurisdiction
over the state law claims against them.

C. Service of Process
*18 Where a plaintiff has been authorized by the Court
to proceed in forma pauperis pursuant to 28 U.S.C. § 1915,
the U.S. Marshals Service is appointed to effect service of
process of the summons and complaint on his behalf. See
Fed. R. Civ. P. 4(c)(2) (U.S. Marshal must be appointed
to serve process when plaintiff is authorized to proceed
in forma pauperis); 28 U.S.C. § 1915(d) (“the officers of
the court shall issue and serve all process and perform
all duties in [in forma pauperis] cases.”). However, in this
case, plaintiff's IFP Application was denied pursuant to 28
U.S.C. § 1915(g). As a result, he is responsible for serving
the summons and complaint on the defendants.
Rule 4(c) of the Federal Rules of Civil Procedure also
provides that “[a]t the plaintiff's request, the court may
order that service be made by a United States marshal
or deputy marshal or by a person specially appointed by
the court.” Fed. R. Civ. P. 4(c)(3). Therefore, in order
to advance the disposition of this action, and in light
of the fact that plaintiff is incarcerated and proceeding
pro se, plaintiff is advised that he may submit a motion
requesting service by the United States Marshal on the
following conditions. Plaintiff must (1) pay the service
fee due to the U.S. Marshal in full in advance by money
order or certified check 12 and (2) provide all necessary
papers for service, including a completed U.S. Marshals
Form (USM-285 Form) for each of the remaining thirtythree defendants, and thirty-three copies of the complaint.
Plaintiff is directed to send the service documents and
payment of the service fee to the Clerk of the United States
District Court, Northern District of New York, 7th Floor,
Federal Building, 100 S. Clinton St., Syracuse, New York
13261-7367, to be forwarded by the Clerk to the U.S.
Marshal.
12

Payment in cash or by personal check is not
acceptable. For service by mail, the fee is $8.00
per summons and complaint. The cost of service
by mail on the twenty defendants in this action
is $264.00. Plaintiff is also advised that, if initial
service is unsuccessful, he will be required to pay the
U.S. Marshal any additional fee, also in advance,
for subsequent service attempts according to the fee
schedule set by the U.S. Marshal.

IV. CONCLUSION
WHEREFORE, it is hereby
ORDERED that the following claims survive sua sponte
review and require a response: (1) the Eighth Amendment
medical indifference claims against defendants Travers,
Marlow, Lashway, Waterson, Fischer, Rock, Schroyer,
Kornigsmann, Grinbergs, Smith, Rabideau, Otis,
Bellnier, and Uhler; (2) the Eighth Amendment excessive
force claims against defendants Patterson, Marshall,
Lipka, Tuper, Whitford, Greenizen, Otis, Rock, Zernia,
Phillips, Grant, Dunning, Richter, and Sisto; (3) the
Eighth Amendment conditions of confinement claims
against defendants Williams, Bilow, Oropallo, and
Greenizen; (4) the Eighth Amendment restricted diet
claims against defendants Rock, Kornigsmann, Fischer,
Prack, Bellnier, Schroyer, Otis, Lashway, Uhler, Travers,
and Lira; and (5) the First Amendment retaliation claims
against defendants Travers, Lashway, Wilson, Gokey,
and Phillips; and it is further
ORDERED that all remaining claims are DISMISSED
without prejudice pursuant to 28 U.S.C. § 1915A(b) for
failure to state a claim upon which relief may be granted;
and it is further 13
13

Should plaintiff seek to pursue any of the claims
dismissed without prejudice, he must file an amended
complaint. Any amended complaint, which shall
supersede and replace the original complaint in
its entirety, must allege claims of misconduct or
wrongdoing against each named defendant which
plaintiff has a legal right to pursue, and over which
jurisdiction may properly be exercised. Any amended
complaint filed by plaintiff must also comply with
the pleading requirements of Rules 8 and 10 of the
Federal Rules of Civil Procedure.

*19 ORDERED the Clerk shall issue summonses
for defendants Travers, Marlow, Lashway, Waterson,
Fischer, Rock, Schroyer, Kornigsmann, Grinbergs,
Smith, Rabideau, Otis, Bellnier, Greenizen, Uhler,
Patterson, Marshall, Lipka, Tuper, Whitford, Zernia,
Grant, Dunning, Richter, Sisto, Williams, Bilow,
Oropallo, Prack, Lira, Wilson, Gokey, and Phillips and
forward them to plaintiff. It is plaintiff's responsibility to
immediately serve the named defendants with a summons
and a copy of his complaint in accordance with the Federal
Rules of Civil Procedure. The Clerk shall forward a copy

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of the summons and complaint by mail to the Office of the
New York State Attorney General, together with a copy
of this Decision and Order; and it is further
ORDERED that a response to the complaint be
filed by the defendants Travers, Marlow, Lashway,
Waterson, Fischer, Rock, Schroyer, Kornigsmann,
Grinbergs, Smith, Rabideau, Otis, Bellnier, Greenizen,
Uhler, Patterson, Marshall, Lipka, Tuper, Whitford,
Zernia, Grant, Dunning, Richter, Sisto, Williams, Bilow,
Oropallo, Prack, Lira, Wilson, Gokey, and Phillips, or
their counsel, as provided for in the Federal Rules of Civil
Procedure; and it is further
ORDERED that Bell, Bellamy, Bosco, Cromp, Evans,
Forbes, Garland, Gonzalez, Hungerford, Jarvis, Kemp,
Laramay, Santamore, Tabb, White, Woodward, Isobella,
Nason, Quinn, and Spinner are DISMISSED without
prejudice as defendants to this action; and it is further
ORDERED that plaintiff may submit a motion requesting
service of process by the U.S. Marshal in accordance
with Federal Rule of Civil Procedure 4(c)(3) to the limited
extent set forth above. The Clerk shall send plaintiff thirtythree blank USM-285 Forms for his use should he choose
to request such service. As a courtesy, the Clerk shall also
send plaintiff one copy of his complaint for his use in
making additional copies; 14 and it is further
14

Plaintiff may, if he so chooses, make copies of his
complaint for service on double-sided paper.

ORDERED that upon receipt from the Clerk of plaintiff's
payment of the service fee and the documents required
for service, the U.S. Marshal shall attempt to serve the
summons and complaint upon the remaining defendants

End of Document

in accordance with Rule 4 of the Federal Rules of Civil
Procedure; and it is further
ORDERED that, if plaintiff requests service by the U.S.
Marshal, he must comply with any additional requests
from the U.S. Marshal for documents that are necessary
to effectuate service, and must provide payment in
advance to the U.S. Marshal for any subsequent service
attempt if the original attempt to serve any defendant is
unsuccessful; and it is further
ORDERED that all pleadings, motions and other
documents relating to this action be filed with the Clerk
of the United States District Court, Northern District of
New York, 7th Floor, Federal Building, 100 S. Clinton St.,
Syracuse, New York 13261-7367. Plaintiff must comply
with any requests by the Clerk's Office for any documents
that are necessary to maintain this action. All parties
must comply with Local Rule 7.1 of the Northern District
of New York in filing motions. All motions will be
decided on submitted papers without oral argument unless
otherwise ordered by the Court. Plaintiff is also required
to promptly notify, in writing, the Clerk's Office and all
parties or their counsel of any change in plaintiff's address;
his failure to do so may result in the dismissal of this action;
and it is further
ORDERED that the Clerk serve a copy of this Decision
and Order on plaintiff.

IT IS SO ORDERED.
Dated: October 20, 2016.
All Citations
Not Reported in F.Supp.3d, 2016 WL 6127510
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