Clarkson, et al v. Coughlin, et al

Filing 166

OPINION: Reginald McFadden ("McFadden") pro se has moved under the June 6, 1996 Clarkson Consent Decree ("Consent Decree") and on the October 23, 2003 order (the "October 23 Order") in this action for order of civil contempt for violating the Consent Decree. Based on the facts and conclusions set forth within, the motion is denied. It is so ordered. (Signed by Judge Robert W. Sweet on 8/27/2014) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------x
DORIS CLARKSON, et al.,
91 Civ. 1792

Plaintiff,

OPINION

-againstGLENN GOORD, et al.,
Defendants.

-----------------------------------------x
A P P E A RA N C E S:

Pro Se

USDCSDNY
DOCUM.ENT

1

Reginald McFadden
DIN #95A6279
Attica Correctional Facility
639 Exchange Street
Attica, New York 14011

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Attorneys for Defendants
ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
120 Broadway
New York, NY 10271

Sweet, D.J.

Reginald McFadden ("McFadden") pro se has moved under
the June 6, 1996 Clarkson Consent Decree ("Consent Decree") and
on the October 23, 2003 order (the "October 23 Order") in this
action for order of civil contempt for violating the Consent
Decree.

Based on the facts and conclusions set forth below, the

motion is denied.

Prior Proceedings

McFadden has filed three different versions of his
motion for contempt, September 8, 2013, October 24, 2013 and
December 26, 2013.

McFadden is an inmate who has been incarcerated in
facilities of the New York State Department of Corrections and
Community Supervision ("DOCCS") while serving an 89 year to life
sentence for rape in the first degree, burglary in the first
degree, robbery in the first degree, kidnapping in the first
degree, aggravated sexual abuse in the first degree, assault in
the second degree, grand larceny in the fourth degree, murder in
the second degree

(two counts), and criminal possession of

1

stolen property in the third degree.

His motion papers appear

to set forth the following allegations.

•

In 2000/2001 he was designated as HL-10

(deaf) by an

audiologist contracted by DOCCS, Keith Walsh ("Walsh"),
and prescribed hearing aids.

(October 24, 2013 Amended

Affidavit ("October 2013 Affidavit")

~~

8-10, 12;

December 26, 2013 Affidavit ("December 2013 Affidavit")
~~

•

1-2.)

After Walsh examined him, DOCCS had a different
audiologist conduct an examination to "undermin[e]"
Walsh's diagnosis.

(October 2013 Aff.

~

11.)

The date

of this examination, where it occurred, and who the
audiologist was are not set forth.
•

On February 12, 2007, he was allegedly assaulted by a
corrections officer "due in part of [sic]

[McFadden's]

disability" and one of his hearing aids was allegedly
damaged.

(December 2013 Aff.

~

3.)

The identity of this

purported corrections officer, where the alleged assault
occurred, and how these events concern the Consent Decree
are not set forth.
•

He appears to claim that there was a "practice or custom
of officials destroying an inmate's hearing aids and eye2

glasses to prevent identifying attackers," but who was
responsible for, or engaged in, the purported "practice
or custom" in question is not set forth.

(December 2013

Aff. '!I 16.)
•

Prior to October 2008, he had alleged problems with
replacing damaged hearing aids and receiving replacement
batteries while at Clinton Correctional Facility (located
in the Northern District of New York)
(October 2013 Aff. '!I'll 12-14.)

("Clinton").

The identity of Clinton

employees he believes were responsible is not set forth.
•

In October 2008, he was allegedly transferred to Auburn
Correctional Facility (located in the Northern District
of New York)
audiologist.

•

("Auburn") without being examined by an
(October 2013 Aff. '!I'll 14-15.)

Prior to and through November 2008, an ear infection was
allegedly not properly treated.
4-7.)

(December 2013 Aff. '!I'll

Who was purportedly responsible for this alleged

lack of proper treatment is not set forth.
•

While he was at Auburn in 2010, audiologist Joseph Gullo
("Gullo") only replaced one hearing aid in a set that
needed replacement.

(October 2013 Aff. '!I 16; December

2013 Aff. '!I 9.)

3

•

"While waiting hearing aids" (at Auburn), he was
assaulted from behind by a mentally ill inmate and
asserts that this assault was "due to the lack of proper
hearing aids."
Aff.

~

9.)

(October 2013 Aff.

~

16; December 2013

After receiving a complete set of hearing

aids it "was difficult to re-order batteries."
2013 Aff.
•

~

(October

17.)

While being treated for a "massive heart attack" at a
State University of New York hospital during an
unidentified timeframe (though presumably when McFadden
was at Auburn), unnamed "DOCCS officials" removed his
hearing aids "to prevent [him from]

hearing their

communication about defrauding the State over overtime."
(October 2013 Aff.

~

18; December 2013 Aff.

~

17.)

How

long his hearing aids were allegedly removed from him is
not set forth.
•

In October 2011, unnamed officers (also presumably at
Auburn)

retaliated against him for complaining about the

events described above by filing a false report (which
was dismissed in 2012) and removing his hearing aids.
(October 2013 Aff.

~

19.)

4

•

On August 1, 2012, the same unnamed officers destroyed
his hearing aids and filed an additional false report.
(October 2013 Aff.

•

~

20.)

To cover up "official misconduct," he was "labeled" as
having a mental illness and was placed under mental
health observation."
37.)

(December 2013 Aff.

~~

17-18, 32-

Who was responsible for these actions and how they

related to the Consent Decree is not set forth.
•

On or about August 10, 2013, "defendant Marinno" [sic],
allegedly a Special Housing Unit ("SHU") counselor,
failed to follow DOCCS' Directive 2612 in a manner not
set forth.

•

(December 2013 Aff.

~

21.)

He was then taken to Southport Correctional Facility
(located in the Western District of New York)
("Southport") where unnamed medical staff ignored his
hearing loss and medical records were fabricated.
(October 2013 Aff.

~

21.)

How long his "hearing loss"

was allegedly ignored, or any detail regarding his claim
that medical records were fabricated, is not set forth.
•

"Defendant" Bruce Blendon ("Blendon") was aware of his
hearing problems when he was placed in disciplinary
confinement (SHU) at Southport.
25.)

(October 2013 Aff.

~

How this constituted wrongdoing on Blendon's part

5

------

~-~-~---·-

or how Blendon allegedly violated the Consent Decree is
not set forth.
•

"Defendants" Nurse Bunning ("Bunning") and PRA Graf
("Graf")
("ADA")

ignored his Americans with Disabilities Act
request for reasonable accommodations when he was

returned to SHU and "defendant" Noeth 1 ("Noeth")
attempted to conduct a Tier III disciplinary hearing, but
that the hearing was ultimately delayed 109 days.
(October 2013 Aff.

~

26.)

No factual allegations

describing how Bunning, Graf, or Noeth violated the
Consent decree are set forth.

2

Allegations with respect

to defendant "Sgt. Condon" and a defendant Correction
Officer are set forth without detail.
Aff.
•

~

(December 2013

30.)

An ADA reasonable accommodation request was filed with
"defendant" Brad Thompson ("Thompson") and "defendant"
Dr. Rao who falsely stated that McFadden has "no hearing
difficulty."

(October 2013 Aff.

~

27.)

No factual

It appears that this is a reference to Captain Noeth of Attica Correctional
Facility (in the Western District of New York) ("Attica"), where the Tier III
hearing was conducted.
(See Buther Deel. Ex. M.)

i

The hearing was delayed to obtain new hearing aids to replace those that
McFadden claimed were lost or destroyed. At the hearing, McFadden conceded
that he had a hearing aid and was not having any sensory problems.
(See
Harben Deel. Ex. G.)
2

6

allegations describing how either Thompson or Dr. Rao
violated the Consent Decree are set forth.
•

Despite Dr. Rao's "false" claim, he had McFadden examined
by an audiologist twice.

(October 2013 Aff.

~

28.)

No

factual allegations describing how these alleged actions
violated the Consent Decree are set forth.
•

On September 25, 2012, "defendant" audiologist Gullo
"conspire[d]" with unnamed "others" by prescribing a
hearing aid for McFadden, but not certifying him as HL-10
(deaf)

so that McFadden would not be a Clarkson class

member.
Aff.

~~

(October 2013 Aff.
21-23.)

~

29; see also December 2013

No factual allegations describing how

Gullo violated the Consent Decree are set forth.
•

On October 3, 2012, he provided a counselor (illegible
name) with a copy of Walsh's 2001 findings, which the
counselor never returned to him.
30.)

(October 2013 Aff.

~

No factual allegations describing how this

counselor violated the Consent Decree are set forth.
•

On August 8, 2013, an ADA reasonable accommodation
request for batteries and a "shake awake" alarm clock was
denied by "defendant" Michalick ("Michalick").
2013 Aff.

~

31.)

(October

No facts describing how this alleged

action violated the Consent Decree are set forth.
7

•

"Defendant" Bradt ("Bradt") violated Due Process in not
following DOCCS Directive 2612 on an unidentified date at
an unidentified location.

(October 2013 Aff.

~

32.)

No

facts describing how Bradt violated the Consent Decree
are set forth.

The instant motion was marked fully submitted on April
21, 2014.

Applicable Standard

This Court has stated "[t]he purpose of a civil
contempt is to compel a reluctant party to do what was ordered
of her."

Figueroa v. Dean, No. 99-CV-12457, No. 99-CV-12458,

2002 WL 31426205, *4

(S.D.N.Y. Oct. 30, 2002).

Courts are not

"entitled to expand or contract the agreement of the parties as
set forth in the consent decree."
1556, 1558 (2d Cir. 1988).

Berger v. Heckler, 771 F.2d

Courts must narrowly construe the

terms of a consent decree, and not impose supplementary
obligations on the parties.

Barcia v. Sitkin, 367 F.3d 87, 106

(2d Cir. 2004).

8

"The imposition of a civil contempt order is a severe
sanction subject to a higher standard of proof than the
'preponderance of the evidence' standard applicable to ordinary
cases."

King v. Allied Vision Ltd., 155 F.R.D. 440, 448

(S.D.N.Y. 1994).

Rather, a plaintiff must prove a civil

contempt with clear and convincing evidence.

New York State

Nat'l. Org. For Women v. Terry, 886 F.2d 1339, 1351 (2d Cir.
1989).

A court's inherent power to hold a party in civil

contempt should be exercised only when:

(1) the order the party

allegedly failed to comply with is clear and unambiguous;

(2)

the proof of noncompliance is clear and convincing; and (3) the
party has not diligently attempted in a reasonable manner to
comply.

Id.; see also Scottish Air Int'l. v. British Caledonia

Group, PLC, 867 F. Supp. 262, 266-67

(S.D.N.Y. 1994).

More specifically, paragraph 52 of the Consent Decree
states in relevant part:

In an effort to avoid motions for contempt and
enforcement, defendants DOC[C]S, OMH and Parole shall
identify by title an ombudsperson responsible for
handling requests for accommodations made by plaintiff
class members through class counsel. Such requests
shall be acted upon within fifteen days of receipt of
a written request by plaintiff's counsel, unless more
expeditious relief is required.

9

Consent Decree

~

52.

Additionally, the October 2003 order

requires class members "to first submit their complaints
for resolution" to the ombudsperson for a determination
whether the complainant was "a member of the class covered
by the decree and whether a violation occurred" before
filing a motion for contempt or enforcement.
Order~

October 2003

3; see also Smith v. Masterson, No. 05-CV-2897,

2006 U.S. Dist. LEXIS 70868, *23 (S.D.N.Y. Sep. 29, 2006).
The 2003 Order was motivated by a concern that prisoners
were filing motions for contempt or enforcement of the
Consent Decree without first addressing the issue with
prison officials.

See Smith, 2006 U.S. Dist. LEXIS 70868

at *23.

Any Claims That Pre-Date September 8, 2010 Are Barred

To the extent that the motion is deemed to make any
claims that concern matters that pre-date September 8, 2010
(reference to pre-September 8, 2010 events appear to be for
background purposes), the doctrine of laches should be applied
to bar any such potential claims.
County, 352 F.3d 60, 63-64
consent decree).

See, e.g., Brennan v. Nassau

(2d Cir. 2003)

(laches applied to

A three-year cut-off is appropriate because

10

all the applicable statutes of limitations here are three-years.
See, e.g., Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 191
(2d Cir. 1996)

("Although laches is an equitable defense,

employed instead of a statutory time-bar, analogous statutes of
limitation remain an important determinant in the application of
a laches defense

. The statute of limitations

determines which party has the burden of proving or rebutting
the defense.")

(citations omitted).

Factors relevant to determining whether laches applies
include whether McFadden knew of alleged misconduct, whether he
inexcusably delayed in taking action, and whether respondent
here was prejudiced by any delay.

See Brennan, 352 F.3d at 64.

Here, McFadden was clearly aware of whatever problems he asserts
existed prior to September 8, 2010 (although his motion does not
attribute any of these problems to any particular DOCCS employee
or medical specialist retained by DOCCS) and, given his history
of extreme litigiousness (see McFadden v. Wilhelm, No. 03-CV8341, 2007 U.S. Dist. LEXIS 30670 (S.D.N.Y. Apr. 20, 2007) and
June 24, 2008 Order in McFadden (Harben Deel. Ex. D.)), there is
no reason why he would not have raised these issues earlier.
Finally, McFadden's delay in raising any such complaints has
prejudiced respondents' ability to address them because of faded

11

memories, departed employees, and lost documentation.

Failure

to have raised such issues with the Clarkson Ombudsperson may
have prevented DOCCS from conducting a proper investigation
while memories were still fresh and relevant records more
readily accessible and could be internally resolved.

To the extent that any such references to matters predating September 8, 2010 are viewed as causes of action, rather
than claims under the equitable provision of the Consent Decree,
any such claims are time-barred under Section 1983, the ADA, and
the Rehabilitation Act (the three statutes that form the basis
for the Consent Decree) and, accordingly, may not be raised
here.

See Connolly v. McCall, 254 F.3d 36, 40-41

(2d Cir. 2001)

(noting three-year statute of limitations under Section 1983) ;;
Morse v. University of Vermont, 973 F.2d 122, 127 (2d Cir. 1992)
(holding that Rehabilitation Act claims are subject to the same
statute of limitations as Section 1983 claims); Keitt v. New
York City, 882 F. Supp. 2d 412, 450

(S.D.N.Y. 2011)

statute of limitations for ADA claims).

McFadden Lacks Clarkson Standing

12

(three-year

This Court has held that a movant "who is not a party
to or a member of the class protected by a consent decree has no
standing to bring a motion for contempt alleging violations of
the decree."

Arce v. O'Connell, 427 F. Supp. 2d 435, 441

(S.D.N.Y. 2006).

As an inmate who has been designated as HL-30

(see Buther Deel.

~

class member.

28), McFadden does not qualify as a Clarkson

See Arce, 427 F. Supp. 2d at 438, 442-43 (inmate

designated as HL-30 not a Clarkson class member).

McFadden claims audiologist Walsh at one time
designated him as having more serious hearing loss than HL-30.
That designation is not dispositive as subsequent audiologists,
John Serhan ("Serhan") and Gullo have since diagnosed McFadden
as being HL-30 or, perhaps, not hearing impaired at all.
Buther Deel.

~~

15-21, 24-25, 28-29, 34.)

(See

The issue of Walsh's

diagnoses has been addressed in prior litigations by other
inmates, finding them to be insufficient to determine that such
inmates are members of the Clarkson class in light of diagnoses
by other audiologists to the contrary.

See, e.g., Smith v.

Masterson, 538 F. Supp. 2d 653, 658-61 (S.D.N.Y. 2008)

(finding

that plaintiff was not a member of the Clarkson class despite
hearing impairment diagnosis by audiologist Walsh) .

13

As McFadden is not a Clarkson class member, he has no
standing to recover for contempt of that decree or to demand
that sanctions be imposed, as he cannot, by definition, have
sustained any injury to be redressed.

See generally Arce, 427

F. Supp. 2d at 438, 442-43.

McFadden Failed To Meet The Consent Decree Prerequisites

It is undisputed that McFadden failed to contact the
designated Consent Decree Ombudsperson regarding his complaints
outlined in his contempt motion, as is required under paragraph
52 of the Consent Decree (Harben Deel. Ex. A) and the October 23
Order (Harben Deel. Ex. B), despite being aware of the
requirement that he do so.

(See Buther Deel.

~

7; see also

March 10, 2014 Deel. of Nancy Heywood ("Heywood Deel.")
As a result, the instant motion is denied.

~

4.)

See, e.g., Myers v.

Andzel, No. 06-CV-14420, 2008 U.S. Dist. LEXIS 7906 (S.D.N.Y.
Feb. 1, 2008)

(contempt motion under Clarkson denied where

movant failed to contact the DOCCS Ombudsperson regarding
complaints prior to filing motion); Clarkson v. Coughlin, No.
91-CV-1792, 2006 U.S. Dist. LEXIS 9676 (S.D.N.Y. Mar. 6, 2006)
(providing notice to DOCCS inmates of Clarkson requirements).

14

---------------------···----··-···-·

···-···

-

···-·

McFadden Has Not Established Clear and Convincing Evidence Of A
Consent Decree Violation

The evidence has established that McFadden was
provided whatever accommodations he was entitled to under DOCCS
Directive 2612, which itself incorporates much of the Consent
Decree.

See Figueroa v. Dean, 425 F. Supp. 2d 448, 451

(S.D.N.Y. 2006)

(noting that DOCCS Directive 2612 contains

"many, if not all" of the Consent Decree requirements).
McFadden was provided with numerous hearing aids over the years,
batteries (and replacement batteries) for those hearing aids as
well as numerous consultations with outside audiologist to
monitor his hearing issues.

(See Buther Deel.

~~

23-28.)

3

He is

not entitled to accommodations beyond those already provided to
him by DOCCS, nor is he entitled to be housed in a facility
designated for HL-10 and HL-20 inmates, as he is an HL-30 inmate
and suitable for housing in any maximum security facility.
at~~

(Id.

22, 36-38.)

McFadden has not established a violation of the
Consent Decree, nor sufficient notice as to what he is claiming.

At one time, McFadden was found to be hoarding numerous hearing aids in his
cell when, in fact, he was only entitled to one set of hearing aids at any
given time.
(Id. at ~ 31.)
This calls into question all of his claims of
lost or confiscated hearing aids made in this motion and refutes any notion
that he has demonstrated contempt by "clear and convincing evidence."

3

15

For example, various unnamed "defendants" mentioned in
paragraphs 18 through 21 of his October 2013 Affidavit
purportedly took action against him in some manner, but given
the lack of detail these allegations cannot even be
investigated.

Similarly, a "defendant" Bradt is alleged to have

"violated Due process" but McFadden does not describe how, when,
or where this was accomplished.

(October 2013 Aff.

~

32.)

How

the Consent Decree was allegedly violated is not explained nor
can it even be inferred from McFadden's papers.

Allegations regarding the alleged failure of medical
staff at Southport Correctional Facility to assist McFadden with
his needs are also rebutted by the record.

After McFadden

complained that he did not have his hearing aids upon his
arrival at Southport, appointments were scheduled with an
audiologist, he was fitted for new hearing aids, and ultimately
received them.

(See Buther Deel.

~~

32-34.)

Many of McFadden's other allegations do not relate to
Clarkson and are thus improperly raised here even if McFadden
did have standing under Clarkson.

For example, in paragraph 16

of the October 2013 Affidavit, McFadden claims he was assaulted
from behind by a mentally ill inmate while "waiting for hearing

16

aids" at some point in 2010-2011.
~

9.)

(See also December 2013 Aff.

This has nothing to do with Clarkson and allegedly took

place in the Northern District of New York while McFadden was at
Auburn and, accordingly, venue would be improper here even if
this was the subject of a lawsuit.

Indeed, this claim does not

claim that anyone at DOCCS was responsible for this mentally ill
inmate allegedly attacking McFadden.

McFadden has also alleged that in August 2012, unnamed
officers retaliated against him by issuing a false report.

In

reality, while on an outside hospital visit, McFadden used a
fake gun in an attempt to escape and assaulted officers in the
process, for which he was disciplined.
33.)

(See Buther Deel.

~~

32-

Aside from having nothing to do with Clarkson, these

claims also arose in the Northern District of New York as
McFadden was incarcerated at Auburn.

Accordingly, these claims

are improperly venued.

McFadden also appears to imply that he may not have
had his hearing aids at his Tier III disciplinary hearing
regarding his escape attempt and assault on DOCCS staff that
commenced on November 30, 2012 at Attica, but there is evidence
that he received new hearing aids on November 16, 2012.

17

(See

Buther Deel.

~

34; Harben Deel. Ex. G.)

Whether McFadden feels

that his Tier III hearing was excessively delayed while DOCCS
had him fitted for new hearing aids (which he demanded prior to
the hearing) is irrelevant to Clarkson.

Any complaints about

alleged delays are venued in the Western District of New York,
where the Tier III hearing was conducted, or in an Article 78
proceeding.

As for complaints regarding Southport (also located in
the Western District) regarding his lost hearing aids after his
escape attempt, there is evidence that during the time in
question, DOCCS was taking reasonable steps to replace the
hearing aids McFadden claims were lost.

(See Buther Deel.

~~

32-33.)

In sum, McFadden's difficult to discern claims fail to
demonstrate under any standard of proof contempt of the Consent
Decree.

Indeed, the record indicates that DOCCS officials

worked reasonable and diligently to address McFadden's limited
needs during the times relevant to this motion.
Buther Deel. )

Conversion To A Separate Lawsuit Is Not Warranted

18

(See generally

McFadden appears to seek to convert this motion into a
separate lawsuit seeking damages.

By orders dated October 23,

2003 and December 8, 2011, the Court determined that if an
inmate is seeking money damages, a separate lawsuit must be
initiated, but if no damages are sought, a contempt motion may
proceed.

Moreover, McFadden has been barred in the Southern
District from filing Section 1983 lawsuits without specific
court permission due to his long history of frivolous and
meritless lawsuits.

See McFadden v. Wilhelm, No. 03-CV-8341,

2007 U.S. Dist. LEXIS 30670 (S.D.N.Y. Apr. 20, 2007) and June
24, 2008 Order in McFadden (Harben Deel. Ex. D.).

Furthermore, to the extent McFadden is using
"sanctions" interchangeably with "damages" in a contempt
proceeding, prior to conducting a damages analysis, a court must
find that the movant established that (1) the contemnor failed
to comply with the decree that is clear and unambiguous and
leaves no uncertainty,

(2) the proof of noncompliance is clear

and convincing and (3) the contemnor did not diligently attempt
to comply in a reasonable manner.

19

Terry, 886 F.2d at 1351; King

v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir. 1995).

The

Court must look to the four corners of the decree and determine
whether the evidence submitted by the movant constitutes a
violation of the provisions as already understood and
interpreted.

King,

65 F.3d at 1058.

Courts exercise discretion

in devising remedies and balance the equities of the interests
of the entities and individuals that the remedies that will
effect.

See United States v. Dist. Council of New York City &

Vicinity of United Broth. of Carpenters & Joiners of Am., 592 F.
Supp. 2d 708, 718

(S.D.N.Y. 2009); Essex County Jail Annex

Inmates v. Treffinger, 18 F. Supp. 2d 445, 451-52

(D.N.J. 1998).

The purpose of the remedies is to ensure future
compliance with the decree and any compensatory sanctions must
be limited to actual losses sustained as a result of the
contumacy.

See Perfect Fit Indus., Inc. v. Acme Quilting Co.,

Inc., 646 F.2d 800, 810

(2d Cir. 1981); Shuffler v. Heritage

Bank, 720 F.2d 1141, 1148-49 (9th Cir. 1983).
cannot be imposed.

Punitive fines

Carpenters, 592 F. Supp. 2d at 720.

Here, because McFadden has failed to establish by
clear and convincing evidence that any DOCCS official violated
the Consent Decree and that they did not make reasonable and

20

diligent attempts to meet its requirements, he is not entitled
to any damages.

There is evidence that at all times relevant to

this motion DOCCS officials attempted to comply in a reasonable
and diligent manner with DOCCS Directive 2612, which covers HL30 inmates

(the failure of which would not be subject to

contempt under Clarkson) and,

indeed, had no duty to comply with

the Consent Decree with regard to McFadden because he is not a
class member.

Additionally, McFadden has failed to show that he

suffered any actual losses.

The Defendants Are Not Subject To Contempt Under Clarkson

McFadden has named various DOCCS officials as
"defendants" in his motion, but none of these named officials
have been served with McFadden's motion papers. None of these
purported "defendants" have titles at DOCCS that correspond to
the titles of the named defendants in this action, which would
be relevant for the purposes of official capacity substitution
under Fed. R. Civ. P. 25(d).

21

~--~----·--·----~~---

·---

---·-

Conclusion

Based on the conclusions set forth above, the motion
of McFadden is denied.

It is so ordered.

Dated:

New Y~~ New York
Augus;-.,./

, 2014

22