Malloy v. Shanely et al

Filing 21

DECISION AND ORDER: ORDERED that plaintiff's motion to vacate (Dkt. No. 15 ) is GRANTED. ORDERED that the judgment entered January 26, 2024 (Dkt. No. 14 ) is vacated. ORDERED that the amended complaint (Dkt. No. 15-1) is accepted for filing and is deemed the operative pleading. ORDERED that the pleading at Dkt. No. 15-1 shall be filed by the Clerk as the amended complaint. ORDERED that the Clerk of the Court shall amend the Docket Report in the following respect: (1) add defe ndants Gutwein, Covert, Extrand, Alexzonia, and Hussain; and (2) substitute "Shanley" for "Shanely". ORDERED that the following claims are DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for fa ilure to state a claim upon which relief may be granted: (1) Eighth Amendment claims against Covert, Extrand, and Alexzonia; (2) Fourteenth Amendment claims; (3) claims related to violations of DOCCS' directives; and (4) First Amendment retaliat ion claims. ORDERED that the excessive force and failure-to-intervene claims against Montgomery, Nin, Ramirez, Redner, Gonzalez-Santos, Hussain, and Shanley survive the Court's sua sponte review under 28 U.S.C. § 1915(e)(2)(B) and 28 U.S. C. § 1915A(b). ORDERED that upon receipt of the documents for service, the Clerk shall issue summonses and forward them, along with copies of the amended complaint, to the United States Marshal for service upon defendants. The Clerk shall forwa rd a copy of the summonses and amended complaint to the Office of the Attorney General, together with a copy of this Decision and Order, by electronic mail only. ORDERED that the Clerk of the Court shall terminate Gutwein, Covert, Extrand, and Alexzonia as defendants herein. Signed by U.S. District Judge Mae A. D'Agostino on March 26, 2024. {order served via regular mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DEAUNNTA MALLOY,
Plaintiff,

9:23-CV-1186
(MAD/DJS)

v.
SHANELY, et al.,
Defendants.
APPEARANCES:
DEAUNNTA MALLOY
Plaintiff, pro se
21-A-1621
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929
MAE A. D'AGOSTINO
United States District Judge
DECISION and ORDER
I.

INTRODUCTION AND PROCEDURAL HISTORY
In September 2023, pro se plaintiff Deaunnta Malloy ("plaintiff") commenced this action

pursuant to 42 U.S.C. § 1983 ("Section 1983") and sought leave to proceed in forma pauperis
("IFP"). Dkt. No. 1 ("Compl."); Dkt. No. 5 ("IFP Application"). By Decision and Order filed on
October 19, 2023 (the "October Order"), the Court granted plaintiff's IFP Application and
reviewed the sufficiency of the complaint in accordance with 28 U.S.C. § 1915(e)(2)(B) and
28 U.S.C. § 1915A(b)(1). Dkt. No. 8. The Court dismissed all claims, without prejudice, for
failure to state a cause of action. Id. In light of his pro se status, plaintiff was afforded an
opportunity to submit an amended complaint. Id. Plaintiff was advised that, if he failed to

submit an amended complaint within thirty (30) days of the filing date of the October Order,
the Court would, without further order, enter judgment dismissing this action without prejudice
for failure to state a claim on which relief may be granted pursuant to Sections 1915(e)(2)(B)
and 1915A(b)(1). Id. at 10.
On November 8, 2023, plaintiff filed a letter request seeking an extension of time to
submit an amended complaint. Dkt. No. 10. The Court granted the request and directed
plaintiff to file an amended pleading on or before December 15, 2023. Dkt. No. 11.
On December 18, 2023, plaintiff filed another letter request seeking an extension of
time to submit an amended complaint. Dkt. No. 12. The Court granted the request and
directed plaintiff to file an amended complaint on or before January 18, 2024. Dkt. No. 13.
On January 26, 2024, after plaintiff failed to comply with the October Order, judgment
was issued. Dkt. No. 14.
On February 16, 2024, plaintiff filed a motion, which the Court liberally construes as a
motion to vacate the judgment, with an amended complaint.1 Dkt. No. 15; Dkt. No. 15-1
("Am. Compl."); see Cato v. Reardon, et al., No. 23-471, Dkt. No. 29 (2d Cir. Sept. 2023)
(directing district court to construe amended complaint as a timely motion to alter or amend
judgment).
II.

MOTION TO VACATE JUDGMENT
Rule 60(b) provides:
Grounds for Relief from a Final Judgment, Order or
Proceeding. On a motion and just terms, the court may relieve
a party . . . from a final judgment, order, or proceeding for the

1
On March 6, 2024, plaintiff filed a duplicate of the first motion to vacate the judgment with the same
amended complaint. Dkt. No. 19.

2

following reasons:
(1)
(2)
(3)
(4)
(5)
(6)

mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence, that with reasonable
diligence, could not have been discovered in time to
move for a new trial under Rule 59(b);
fraud, misrepresentation, or misconduct;
the judgment is void;
the judgment has been satisfied, released, or
discharged; or
any other reason that justifies relief.

Fed. R. Civ. P. 60(b).
Construing his submission liberally, plaintiff requests relief under rule 60(b)(6) arguing
"extraordinary circumstances." Rule 60(b)(6) is a "catch-all" provision that applies to
"extraordinary circumstances" or "extreme hardship." U.S. v. Cirami, 563 F.2d 26, 32 (2d Cir.
1977). The decision whether to afford relief rests with the "sound discretion of the district
court." Garcia v. Myears, No. 13-CV-0965, 2015 WL 1015425, at *2 (W.D.N.Y. March 9,
2015). "Generally, courts require that the evidence in support of the motion to vacate a final
judgment be 'highly convincing,' that a party show good cause for the failure to act sooner,
and that no undue hardship be imposed on other parties." Kotlicky v. U.S. Fid. & Guar. Co.,
817 F.2d 6, 9 (2d Cir. 1987) (citation and internal citations omitted).
Here, plaintiff filed the within motion on February 16, 2024, less than a month after
judgment was issued. Given the fact that plaintiff is pro se, the Court does not find the delay
to be unreasonable. In support of his claim of "extraordinary circumstances," plaintiff alleges
that Clinton Correctional Facility, his present place of confinement, is "on edge" due to recent
litigation. Dkt. No. 15. Plaintiff claims he attempted to mail his amended complaint on two
occasions, but it was returned. Dkt. No. 15.
Based upon a review of the motion and procedural history, to prevent manifest
3

injustice, the Court grants plaintiff's motion to vacate the judgment. See Braithwaite v.
Gaitman, No. 22-CV-0974, 2022 WL 14059127, at *5 (E.D.N.Y. Oct. 24, 2022) (noting that
the special solicitude towards pro se litigants "takes a variety of forms, including liberal
construction of papers, relaxation of the limitations on the amendment of pleadings, leniency
in the enforcement of other procedural rules"). Thus, plaintiff's motion to vacate the judgment
is granted and the judgment entered January 26, 2024 is vacated. The Clerk is directed to
restore this case to the active docket.
III.

SUFFICIENCY OF AMENDED COMPLAINT
Because this action has been reopened, the Court deems the amended complaint

(Dkt. No. 15-1) as the operative pleading and will review plaintiff's amended complaint in
accordance with 28 U.S.C. §§ 1915(e) and 1915A.
A. 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 1915(A)(b) was discussed at length in the
October Order and will not be restated in this Decision and Order. See Dkt. No. 8 at 2-4.
B. Summary of Factual Allegations and Claims
In the amended complaint, plaintiff identified the following new defendants:
Commissioner Hearing Officer Eric Gutwein ("Gutwein")2; Lieutenant A. Covert ("Covert");
Sergeant Extrand ("Extrand"); Corrections Officer Alexzonia ("Alexzonia"); and Corrections

2

Plaintiff refers to this defendant as "Eric Gutwien" in the caption however, in the list of parties and body
of the amended complaint, plaintiff refers to defendant as "Eric Gutwein." Accordingly, the Court will refer to the
defendant as "Gutwein."

4

Officer A. Hussain ("Hussain").3 Am. Compl. at 1, 3-10.
The incidents that form the basis for the amended complaint allegedly occurred while
plaintiff was confined at Coxsackie Correctional Facility ("Coxsackie C.F."). See generally
Am. Compl. The following facts are set forth as alleged by plaintiff in his amended complaint.
On August 3, 2022, defendants Corrections Officers Montgomery, Nin, Ramirez,
Redner, and Gonzalez-Santos appeared at plaintiff's cell for a cell search. Am. Compl. at 15.
At the time, plaintiff was using the lavatory and had placed a towel "covering the window view
to his housing cell." Id. at 16. Montgomery directed plaintiff to remove the towel and plaintiff
asked for "one minute" but, after hearing a "commotion outside," he immediately removed the
towel. Id.
Plaintiff was ordered to "cuff up" and directed to face the back window with his hands
"high and flat on the wall." Am. Compl. at 17. Plaintiff complied and was "rushed" by
Montgomery, Nin, Ramirez, Redner, and Gonzalez-Santos. Id. Defendants yelled "stop
resisting" however, plaintiff was not resisting. Id. Plaintiff was "wrestled down, choked,
punched, and kicked." Id. at 17. Plaintiff's fingers were "twisted" and defendants uttered
racial slurs. Am. Compl. at 18. Plaintiff fell on the floor and was escorted to the facility
hospital. Id. While he was being escorted, plaintiff saw defendant Superintendent Raymond
J. Shanley ("Shanley") and pleaded with him to intervene. Id. at 6. Shanley "smirk[ed]" and
did not respond. Id.
When plaintiff arrived at the hospital, Nin "karate kicked him in the face" and "all

3

The Clerk of the Court is directed to add these individuals as defendants to the Docket Report. With
the amended complaint, plaintiff also changed the name of defendant "Shanely" to "Shanley." The Clerk shall
amend the Docket Report accordingly.

5

defendants" started kicking and punching his head, face, torso, back, and buttocks. Am.
Compl. at 18. Plaintiff briefly lost consciousness and, when he awoke, Hussain appeared at
the door and asked "is everything all right?" Id. Defendants responded "you know that," and
Hussain closed the door. Id. Defendants then continued to assault plaintiff until he lost
consciousness again. Id. at 18-19.
Plaintiff suffered injuries and experienced pain in his lower back, buttock, and rectal
area. Am. Compl. at 19. Once again, Hussain appeared at the door and asked "is everything
all right?" Id. Defendants told him "couldn't be better" and Hussain closed the door. Id.
Plaintiff was punched in the stomach and experienced dizziness when he attempted to stand.
Id.
Plaintiff alleges that "an object (purporting to be a weapon) was inserted into his
rectum" by Nin, Redner, and Gonzalez-Santos in a "vacant exam room" while Hussain was
"stationed" as the "watchout." Am. Compl. at 6.
The medical staff at Clinton C.F. directed officers to take plaintiff to "Albany Med." Am.
Compl. at 19. Plaintiff suffered injuries to his head, face, back, torso, internal injuries to his
anal, kidney, and other injuries as a result of the "beating and sexual assault." Id. at 20.
While at Albany Medical Center, an "item [was] extracted from his rectum." Id. at 4.
Plaintiff received a misbehavior report as a result of the incidents. Am. Compl. at 12.
While he was confined in the Special Housing Unit ("SHU") pending disciplinary proceedings,
Extrand and Alexzonia withheld food from plaintiff or served contaminated meals for "three
days." Id. at 5, 10, 13. When plaintiff complained, Extrand and Alexzonia responded with
racial slurs. Id. at 10, 13.
Gutwein presided over a hearing and denied plaintiff the right to an employee
6

assistant, the right to call witnesses and to present evidence. Am. Compl. at 13. In total,
plaintiff served 290 days in the Special Housing Unit ("SHU"). Id.
Construing the amended complaint liberally, plaintiff asserts the following: (1) Eighth
Amendment excessive force and failure-to-intervene claims against Nin, Redner, GonzalezSantos, Montgomery, Ramirez, Hussain, Covert, and Shanley; (2) Eighth Amendment claims
related to plaintiff's conditions of confinement against Extrand and Alexzonia; (3) Fourteenth
Amendment due process claim against Gutwein; (4) constitutional claims related to violations
of DOCCS' Directives; and (5) First Amendment retaliation claims against Gutwein, Covert,
Extrand, Alexzonia, and Hussain. See generally Am. Compl. Plaintiff seeks monetary
damages and declaratory relief. See id. at 22.
C. Discussion
1. Eighth Amendment Excessive Force and Failure-to-Intervene Claims
The law related to Eighth Amendment excessive force and failure-to-intervene claims
was discussed in the October Order and will not be restated herein. See Dkt. No. 8 at 7-9. In
the October Order, the Court dismissed plaintiff's claims for failure to allege personal
involvement. Id. at 9. The Court reasoned, "[p]laintiff alleges that 'defendants' assaulted him
and failed to protect him. However, the complaint does not describe the specific conduct of
each of the defendants. It is not clear which of the individual defendants actually assaulted
plaintiff and which defendants were present and failed to act." Id. at 7-8.
With the amended complaint, plaintiff has partially addressed the deficiencies
discussed in the October Order. At this juncture, plaintiff has sufficiently plead excessive
force and failure-to-intervene claims against Montgomery, Nin, Ramirez, Redner, GonzalezSantos, Hussain, and Shanley to require a response. In so ruling, the Court expresses no
7

opinion as to whether these claims can withstand a properly filed motion to dismiss or for
summary judgment.
A different conclusion is reached however, with respect to Covert. As discussed in the
October Order:
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)); Iqbal, 556 U.S. at 676. "[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). In a recent decision, the
Second Circuit held that "there is no special rule for supervisory
liability" and, that a "plaintiff must plead and prove 'that each
Government-official defendant, through the official's own
individual actions, had violated the Constitution.' " Tangreti v.
Bachmann, 983 F.3d. 609 (2d Cir. 2020).
Dkt. No. 8 at 6.
Here, plaintiff alleges that Covert was the "watch commander" on "the day in question."
Am. Compl. at 4. The amended complaint however, lacks facts suggesting that Covert
personally participated in the alleged excessive force, that he was present during the
incidents, or that he witnessed the alleged assaults. Accordingly, plaintiff has failed to plead a
viable Eighth Amendment claim against Covert. See Flores v. Giuliano, No. 12 C 162, 2014
WL 3360504, at *9 (N.D. Ill. July 9, 2014) (awarding summary judgment to watch commander
who was not on the scene at the time).
2. Eighth Amendment - Conditions of Confinement
"The Second Circuit has held that the Constitution requires that prisoners be fed
nutritionally adequate food and 'under certain circumstances a substantial deprivation of food
8

may well be recognized as being of constitutional dimension.' " Sankara v. Montgomery, No.
9:16-CV-0885 (FJS/TWD), 2018 WL 4610686, at *8 (N.D.N.Y. June 25, 2018) (quoting Robles
v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983)), adopted by 2018 WL 3408135 (N.D.N.Y. July 13,
2018); see also Jackson v. Marks, 722 Fed. App'x 106, 107 (2d Cir. 2018) (summary order)
("[A] substantial deprivation of food can cause serious physical harm sufficient to find cruel
and unusual punishment in violation of the Eighth Amendment.").
"To establish a valid claim that the denial of food . . . constitutes an Eighth Amendment
violation, one must establish that there was a 'sufficiently serious condition' that resulted from
the food not being received." Lewis v. Zon, 920 F.Supp.2d 379, 387 (W.D.N.Y. 2013) (citation
omitted). 'A condition is serious for constitutional purposes if it presents 'a condition of
urgency that may result in degeneration or extreme pain.' " Id. (quoting Chance v. Armstrong,
143 F.3d 698, 702 (2d Cir. 1988)).
Plaintiff's claims against Extrand and Alexzonia arising from the allegation that they
refused to provide plaintiff with meals or provided contaminated meals for three days do not
sufficiently allege that plaintiff was denied life's necessities under the Eighth Amendment.
Plaintiff has failed to identify the date(s) and number of times when defendants denied him
meals or served him contaminated food. Moreover, plaintiff has not alleged that he suffered
any injury as a result of the alleged deprivation or contamination. The Court is therefore
unable to evaluate whether defendants' actions give rise to a constitutional claim. See Reeder
v. Artus, No. 9:09-CV-575 (DNH/DRH), 2010 WL 3636138, at *11 (N.D.N.Y. July 27, 2010)
(recommending dismissal of Eighth Amendment claim against two corrections officers based
on an allegation that they "denied him food meals" because the complaint "fail[ed] to allege
with specificity any dates or times of such meal denials"), report and recommendation adopted
9

by 2010 WL 3636132 (N.D.N.Y. Sept. 9, 2010); Konovalchuk v. Cerminaro, No.
9:11-CV-01344 (MAD/CFH), 2014 WL 272428, at *1-*3, *21 (N.D.N.Y. Jan. 24, 2014)
(adopting recommendation dismissing Eighth Amendment claim based on denial of two
consecutive meals); Gill v. Hoadley, 261 F.Supp.2d 113, 129 (N.D.N.Y. 2003) (finding that
complaint failed to state Eighth Amendment claim where prisoner alleged he was denied one
meal).
Accordingly, the Eighth Amendment claims against Extrand and Alexzonia 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 pursuant to Section 1983.
3. Fourteenth Amendment Due Process Claims
Plaintiff claims that Gutwein presided over a Superintendent's Hearing related to a
misbehavior report issued by Hussain, who charged plaintiff with possessing a weapon. Am.
Compl. at 3.
The Due Process Clause of the Fourteenth Amendment provides that "[n]o State shall .
. . deprive any person of life, liberty, or property without due process of law." U.S. Const.,
amend. XIV. To show a procedural due process violation in a Section 1983 action, a plaintiff
must demonstrate that he had a protected liberty interest and that he was deprived of that
liberty interest without due process of law. See Giano v. Selsky, 238 F.3d 223, 225 (2d Cir.
2001); Tellier v. Fields, 280 F.3d 69, 79–80 (2d Cir. 2000). A prisoner's protected liberty
interest is implicated where the punishment at issue imposes an "atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner,
515 U.S. 472, 484 (1995). The prevailing view in this Circuit is that, by its regulatory scheme,
the State of New York has created a liberty interest in remaining free from disciplinary
10

confinement. See, e.g., LaBounty v. Coombe, No. 95-CV-2617, 2001 WL 1658245, at *6
(S.D.N.Y. Dec. 26, 2001); Alvarez v. Coughlin, No. 94-CV-0985, 2001 WL 118598, at *6
(N.D.N.Y. Feb. 6, 2001). Accordingly, to find that plaintiff's complaint states a cognizable
procedural due process claim, the Court must inquire whether the allegations related to the
conditions of plaintiff's disciplinary confinement rise to the level of an atypical and significant
hardship under Sandin.
To determine whether an inmate has suffered an "atypical and significant hardship," the
conditions imposed upon the inmate must be compared with those imposed upon the rest of
the general population of the facility, as well as those in administrative and protective
confinement. Welch v. Bartlett, 196 F.3d 389, 393 (2d Cir. 1999); Vega v. Lantz, 596 F.3d 77,
83 (2d Cir. 2010) ("To be actionable, the liberty interest must subject the prisoner to 'atypical
and significant hardship . . . in relation to the ordinary incidents of prison life.'" (quoting Sandin,
515 U.S. at 484)). When assessing the severity of the hardship imposed, a court should take
into account both the duration and the conditions of the confinement, where appropriate. Arce
v. Walker, 139 F.3d 329, 336 (2d Cir. 1998). Thus, while under certain circumstances
confinement of less than 101 days could be shown to meet the atypicality standard under
Sandin, see Colon, 215 F.3d at 232 n.5, the Second Circuit generally takes the position that
restrictive confinement, without unusual conditions, for a period of up to 101 days will
generally not constitute an atypical hardship, while confinement for a period of more than 305
days has been held to be atypical even if under "normal conditions." Davis v. Barrett, 576
F.3d 129, 133 (2d Cir. 2009) (citing Colon, 215 F.3d at 231).
"When a prison disciplinary hearing may impose a punishment sufficient to trigger due
process protections, 'the inmate must receive: (1) advance written notice of the disciplinary
11

charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to
call witnesses and present documentary evidence in his defense; and (3) a written statement
by the factfinder of the evidence relied on and the reasons for the disciplinary action.' "
Washington v. Gonyea, 538 Fed. App'x 23, 25 (2d Cir. 2013) (quoting Superintendent v. Hill,
472 U.S. 445, 454 (1985)). In addition, "due process requires 'that there be some evidence to
support the findings made in the disciplinary hearing.' " Zavaro v. Coughlin, 970 F.2d 1148,
1152 (2d Cir. 1992). "[T]he relevant question is whether there is any evidence in the record
that could support the conclusion reached by the disciplinary board." Superintendent,
Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 447 (1985) (emphasis added).
Here, even assuming plaintiff suffered a deprivation of a liberty interest, plaintiff's due
process claims are too vague to warrant a response. First, the amended complaint lacks any
facts related to when the hearing was held, what type of hearing was held, the reason for the
hearing, the charges, or the sentence, if any, imposed by Gutwein. Plaintiff has not specified
what witnesses or documents he requested during his hearing, why the testimony or evidence
was necessary, and Gutwein's response to those requests.
Accordingly, the Court dismisses plaintiff's due process claims against Gutwein
pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) for failure to state a claim upon which
relief may be granted.
Construing the amended complaint liberally, plaintiff also claims that Hussain violated
his due process rights when he issued a false misbehavior report. Even if this assertion is
true, "[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." Williams v. Smith,
781 F.2d 319, 324 (2d Cir. 1986). Rather, "[t]he issuance of false misbehavior reports and
12

provision of false testimony against an inmate . . . violates due process only where either
procedural protections were denied that would have allowed the inmate to expose the falsity of
the evidence against him, . . . or where the fabrication of evidence was motivated by a desire
to retaliate for the inmate's exercise of his substantive constitutional rights[.]" Mitchell v.
Senkowski, 158 Fed. App'x 346, 349 (2d Cir. 2005) (internal citations omitted).
As noted supra, the due process claim related to procedural protections at the heraing
is dismissed. Moreover, plaintiff does not allege that the misbehavior report was issued in
retaliation for his exercise of a constitutionally protected right. Accordingly, the Court finds
that plaintiff has failed to state a claim for violation of his due process rights against Hussain.
4. Violations of DOCCS' Directives
Plaintiff claims that defendants violated DOCCS Directives. See Am. Compl. at 13. A
Section 1983 claim brought in federal court is not the appropriate vehicle by which to raise
violations of prison regulations. See Hyman v. Holder, No. 96-CV-7748, 2001 WL 262665, at
*6 (S.D.N.Y. Mar. 15, 2001) (holding that allegations of prison regulation violations "are not
cognizable under [Section] 1983" because "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"); see also Sanders v. Gifford, No. 11-CV-0326,
2014 WL 5662775, at *4 (N.D.N.Y. Nov. 4, 2014) (holding that failure to follow a DOCCS
directive does not give rise to a § 1983 claim).
Accordingly, the Court dismisses these claims.
5. First Amendment Retaliation Claims
To state a claim of retaliation under the First Amendment, a plaintiff must allege facts
plausibly suggesting the following: (1) the speech or conduct at issue was "protected"; (2) the
13

defendants took "adverse action" against the plaintiff – namely, action that would deter a
similarly situated individual of ordinary firmness from exercising his or her constitutional rights;
and (3) there was a causal connection between the protected speech and the adverse action
– in other words, that the protected conduct was a "substantial or motivating factor" in the
defendant’s decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977); Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)
(citing Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001)). The Second Circuit has stated
that courts must approach prisoner retaliation claims "with skepticism and particular care,"
since "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." Dawes, 239 F.3d at 491, overruled on other
grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (citing Flaherty v. Coughlin,
713 F.2d 10, 13 (2d Cir. 1983)); Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988).
Plaintiff’s retaliation claims against Gutwein, Covert, Montgomery, Extrand, and
Alexzonia, see Am. Compl. at 4, 5, 9, 10, are subject to dismissal. First, the amended
complaint lacks facts suggesting that plaintiff engaged in constitutionally protected conduct.
Plaintiff vaguely alleges that he filed "internal complaints" and "allegations," see id. at 4, 5, 10,
but fails to allege facts related to when he filed complaints, whether the complaints were
written or verbal, who was aware of the complaints, and the sum and substance of the
complaints. Moreover, even assuming plaintiff suffered adverse actions, the pleading lacks
facts connecting the defendants to any of the complaints or protected activity. Even
construing the amended complaint liberally, plaintiff has failed to allege any facts to plausibly
suggest that defendants were motivated to retaliate against plaintiff. See Hare v. Hayden, No.
14

09 Civ. 3135, 2011 WL 1453789, at *4-5 (S.D.N.Y. Apr. 14, 2011) (holding that the plaintiff
"fail[ed] to establish that [the defendant] had a motive to retaliate" against him for complaints
filed against another corrections officer).
Accordingly, plaintiff's retaliation claims are dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) and § 1915A(b) for failure to state a claim upon which relief may be granted.
IV.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff's motion to vacate (Dkt. No. 15) is GRANTED; and it is further
ORDERED that the judgment entered January 26, 2024 (Dkt. No. 14) is vacated, and

is further
it
ORDERED that the amended complaint (Dkt. No. 15-1) is accepted for filing and is
deemed the operative pleading; and it is further
ORDERED that the pleading at Dkt. No. 15-1 shall be filed by the Clerk as the
amended complaint; and it is further
ORDERED that the Clerk of the Court shall amend the Docket Report in the following
respect: (1) add defendants Gutwein, Covert, Extrand, Alexzonia, and Hussain; and (2)
substitute "Shanley" for "Shanely"; and it is further
ORDERED that the following 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: (1) Eighth Amendment claims against Covert, Extrand, and Alexzonia; (2) Fourteenth
Amendment claims; (3) claims related to violations of DOCCS' directives; and (4) First
Amendment retaliation claims; and it is further

15

ORDERED that the excessive force and failure-to-intervene claims against
Montgomery, Nin, Ramirez, Redner, Gonzalez-Santos, Hussain, and Shanley survive the
Court's sua sponte review under 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b); and it
is further
ORDERED that upon receipt of the documents for service, the Clerk shall issue
summonses and forward them, along with copies of the amended complaint, to the United
States Marshal for service upon defendants. The Clerk shall forward a copy of the
summonses and amended complaint to the Office of the Attorney General, together with a
copy of this Decision and Order, by electronic mail only; and it is further
ORDERED that a response to the amended complaint be filed by defendants, or
counsel, as provided for in the Federal Rules of Civil Procedure; and it is further
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

16

change in his address; their failure to do so will result in the dismissal of his action;
and it is further
ORDERED that the Clerk of the Court shall terminate Gutwein, Covert, Extrand, and
Alexzonia as defendants herein; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on
plaintiff in accordance with the Local Rules of Practice.
IT IS SO ORDERED.
Dated: March 26, 2024
Albany, New York

17