Locenitt v. Dinello et al

Filing 145

OPINION AND ORDER re: 66 MOTION to Dismiss . filed by Kristin Salotti, David Dinello.Defendant Kristin Salotti's Motion to Dismiss is granted. The Clerk of the Court is directed to close docket entry number 66 and terminate Salotti from the docket in the above-captioned case. SO ORDERED. Kristin Salotti terminated. (Signed by Judge Loretta A. Preska on 9/24/2024) (tg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KIAZA LOCENITT,
Plaintiff,

No. 23-CV-3399 (LAP)

-against-

OPINION AND ORDER

DAVID S. DINELLO, et al.,
Defendants.
LORETTA A. PRESKA, Senior United States District Judge:
Before the Court is the motion to dismiss Plaintiff Kiaza
Locenitt’s Complaint, (see dkt. no. 1 [“Complaint” or “Compl.”]),
filed by Defendant Kristin Salotti.
to Dismiss”].) 1

(See dkt. no. 66 [the “Motion

For the reasons set forth below, the Court grants

Salotti’s Motion to Dismiss.
I.

Background
A. Factual Background
1. The Parties and Plaintiff’s Medical Treatment History
Plaintiff is an inmate who was in the custody of the New York

State

Department

of

Corrections

and

Community

Supervision

(“DOCCS”) as early as 2009 and, after a release, re-entered DOCCS
In docket entry number 66, Defendant David Dinello also moved to
dismiss Plaintiff’s Complaint, but only on grounds related to
Plaintiff’s purported failure to exhaust his administrative
remedies and satisfy the statute of limitations. (See dkt. no. 67
at 4-7.)
However, because the Court has already denied as
premature all motions to dismiss based on statute of limitations
or exhaustion grounds, (see dkt. no. 86), Dinello’s arguments in
the motion to dismiss are moot and no longer sub judice.
1

1

custody in 2013.

(See Compl. ¶¶ 5, 297-98, 339.)

He suffers from

chronic pain in his lower back, hip, and left knee, as well as
chronic migraines, seizure disorder, degenerative joint disease,
and mental health issues.

(See id. ¶ 5.)

Defendants are physicians or other medical providers who
worked in various capacities for DOCCS at all times relevant to
the instant Motion to Dismiss.

(See id. ¶¶ 11-27.)

As is

particularly relevant here, Plaintiff identifies Defendant Kristin
Salotti as a “Mid-Level clinician” who treated him briefly at
DOCCS’s Five Points Correctional Facility (“Five Points”) when he
was housed there between January and April 2018.

(See id. ¶¶ 27,

323-25.)
When Plaintiff re-entered DOCCS custody in 2013, he was housed
at Wende Correctional Facility (“Wende”) before being transferred
to Five Points in May 2014.

(See id. ¶¶ 299-300.)

At both

facilities, medical providers addressed Plaintiff’s complaints of
chronic pain by providing him ibuprofen.
2015,

shortly

Correctional
Plaintiff’s

after

DOCCS

Facility,
pain

with

transferred

medical

(See id.)
Plaintiff

providers

Neurontin,

an

began

In January
to

Sullivan
to

treat

anticonvulsant

often

prescribed to relieve nerve pain and neuropathy.

(See id. ¶¶ 94,

300-01.) Defendant continued to use Neurontin until February 2016,
when Defendant Jacqueline Levitt began to taper Plaintiff off the
medication based on “inadequate [symptoms] to continue [its] use.”
2

(See id. ¶¶ 305-06.)

When Plaintiff began to complain and asked

his provider to reinstate a full dose of Neurontin, Levitt refused.
(See id. ¶ 307.)

As DOCCS transferred him between and among

multiple facilities over the next few months, Plaintiff continued
to complain about pain and to request reinstatement of his previous
Neurontin dosage, which complaints and requests were met with
prescriptions for Indocin.

(See id. ¶¶ 311-18.)

In April 2017, Defendant Shehab Zaki, a medical provider at
the Marcy Correctional Facility where Plaintiff was housed at the
time, re-prescribed Plaintiff 300mg of Neurontin and referred him
to physical therapy.
was

transferred

back

(See id. ¶ 319.)
to

Wende

one

However, when Plaintiff

month

later,

his

medical

providers there discontinued his Neurontin prescription when they
accused him of diverting the medication following an incident
during which he placed his Neurontin pill on the floor after he
received it.

(See id. ¶ 320.)

In July 2017, Plaintiff requested

to be re-prescribed Neurontin for his back pain, but the nurse at
Wende wrote in a contemporaneous note that Plaintiff would not
receive a new prescription.

(See id. ¶ 321.)

Plaintiff was then transferred back to Five Points in 2018,
at which time he was only taking ibuprofen to treat his pain.
id. ¶ 323.)
Five

(See

Defendant Kristin Salotti, a clinician with DOCCS at

Points,

treated

Plaintiff’s

pain

Plaintiff says did not treat his pain.
3

with

(See id.)

Topamax,

which

Plaintiff does

not state whether he specifically requested from Salotti any
particular medication.
Plaintiff was transferred several more times in the following
three years, during which time he continued to complain to several
defendants about his chronic pain and to request Neurontin to treat
his pain, which requests were denied each time by several different
defendants.

(See

id.

¶¶ 326-29,

331-32,

334.)

The

various

defendant medical providers at the facilities at which Plaintiff
was housed at this time mostly treated Plaintiff’s general pain
with ibuprofen and Celebrex and treated his headaches with Topamax,
Excedrin, and Propranolol.

(See id. ¶¶ 325, 333, 335-36.)

2. The MWAP Policy
On June 2, 2017, DOCCS Chief Medical Officer Allen Koenigsmann
promulgated the Medications With Abuse Potential (“MWAP”) Policy.
(See id. ¶¶ 11, 151-52.)
provider

at

a

inmates—seeking
substance[]”

DOCCS
to

or

Pursuant to the MWAP Policy, any medical
facility—including

prescribe

for

“medication[]

an

that

physicians

inmate
ha[s]

any

treating

“controlled

significant

abuse

potential” would have to submit an MWAP Request Form to the DOCCS
regional

medical

director

in

charge

of

overseeing

treatment at the provider’s particular DOCCS facility.
¶¶ 161-65.)

medical
(See id.

The medical provider at the particular DOCCS facility

would have to include in the MWAP Request the patient’s health
information,

the

justification

for
4

using

the

particular

medication, a list of alternatives the provider had attempted to
treat the medical issue, and any recent evidence of the patient’s
drug diversion or abuse.

(See id. ¶¶ 166-67.)

After receiving

the medical provider’s MWAP Request to prescribe a particular
medication,

the

regional

medical

director

in

charge

of

the

provider’s facility would either approve or deny the proposed
prescription.

(See id. ¶ 170.)

B. Procedural History
The instant case is related to a class action lawsuit brought
by several DOCCS inmates on behalf of a class of individuals in
DOCCS custody whose medications were denied or discontinued after
the institution of the MWAP Policy.

(See Allen v. Koenigsmann,

19-cv-8173 [“Allen I”], dkt. no. 371 at 7.)

On March 31, 2023,

this Court issued an opinion granting the Allen I plaintiffs’
motion to certify a class to pursue injunctive relief but denying
the plaintiffs’ motion to certify a class to pursue damages for
liability. See Allen I, No. 19-cv-8173 (LAP), 2023 WL 2731733,
at *6 (S.D.N.Y. Mar. 31, 2023).

The Court held that plaintiffs in

Allen I had failed to show that the proposed “liability class” had
standing

to

Constitution.
Following

sue

under

Article

III

of

the

United

States

See id. at *2.
this

Court’s

denial

of

certification

of

a

“liability class,” Plaintiff filed the instant individual suit for
damages on April 23, 2023.

(See Compl.)
5

In his Complaint,

Plaintiff asserts a single claim under 42 U.S.C. § 1983 for
deliberate

indifference

to

his

medical

needs

due

to

DOCCS’s

implementation of the MWAP Policy and the discontinuation and
denial of Plaintiff’s medications that ensued. (See id. ¶¶ 34046.)
Defendants Jacqueline Levitt, Hope Obertean, and Janice Wolf
moved to dismiss Plaintiff’s Complaint on October 16, 2023, (see
dkt. no. 62), as did Defendants Kristin Salotti and David Dinello,
(see Motion to Dismiss). 2

The bulk of each of the motions to

dismiss rested on grounds that the statute of limitations barred
Plaintiff’s

claim

administrative
(See

dkt.

nos.

and

remedies
64,

that

Plaintiff

before

67.)

failed

initiating

However,

to

the

Salotti

exhaust

instant

also

his

action.

argued

that

Plaintiff had failed to state a plausible claim under 42 U.S.C.
§ 1983 against her because he had not sufficiently alleged that
she was personally involved in the deprivation of his medical care.
(See dkt. no. 67 at 7-10.)

Plaintiff initially filed on October

28, 2023, a single brief opposing Salotti’s and Dinello’s Motion
to Dismiss as well as the motion to dismiss filed by Levitt,
Obertean, and Wolf.

(See dkt. no. 70.)

Plaintiff’s opposition

In support of their Motion to Dismiss, Salotti and Dinello also
filed a Memorandum of Law in Support thereof, (see dkt. no. 67),
and a Reply Memorandum of Law in Support thereof, (see dkt. no.
83).
They have also filed a supplemental letter regarding
Plaintiff’s failure to oppose Salotti’s Rule 12(b)(6) argument in
her Motion to Dismiss brief. (See dkt. no. 89.)
2

6

brief made no mention of Salotti’s argument that Plaintiff failed
to state a claim against her under 42 U.S.C. § 1983.
On November 16, 2023, the Court held a conference in the
above-captioned case and in twenty-five other cases related to
Allen I (the “Tranche I Cases”).

(See dkt. nos. 80, 86-87.)

At

that time, there were motions to dismiss pending in sixteen of the
Tranche I Cases.

At the conference, the Court denied as premature

the motions to dismiss filed by defendants in the Tranche I Cases
that were based solely on the plaintiffs’ purported failure to
comply with the applicable statute of limitations, including the
Defendant Providers’ motion to dismiss.

(See dkt. no. 86 at 1-

2.) The Court left pending the motions to dismiss filed in Tranche
I Cases that included arguments made pursuant to Federal Rule of
Civil Procedure 12(b)(6) that the plaintiffs had failed to state
plausible claims for relief under 42 U.S.C. § 1983.
at 2.)
id.)

(See id.

The instant Motion to Dismiss was one such motion.

(See

The Court also ordered each plaintiff in the Tranche I Cases

opposing a motion to dismiss made on 12(b)(6) grounds to file a
brief in opposition to any such motion no later than November 29,
2023. (See id.) Plaintiff in the above-captioned case never filed
any such opposition. Nevertheless, Defendant Salotti filed a brief
letter reply on December 4, 2023.

(See dkt. no. 89.)

On March 19, 2024, Defendant Dinello filed an answer to
Plaintiff’s Complaint, as he had not included in the Motion to
7

Dismiss any argument pursuant to Rule 12(b)(6) that Plaintiff had
failed to state a claim against him.
II.

(See dkt. no. 114.)

Legal Standard
To survive a motion to dismiss for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”

In re Actos

EndPayor Antitrust Litig., 848 F.3d 89, 97 (2d Cir. 2017) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“A claim has facial

plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678.

That

“standard is not akin to a probability requirement, but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.”
2019)

Palin v. N.Y. Times Co., 940 F.3d 804, 810 (2d Cir.

(internal

quotations

omitted).

Evaluating

“whether

a

complaint states a plausible claim for relief” is “a contextspecific task that requires the reviewing court to draw on its
judicial experience and common sense.”
When

considering

a

motion

to

Iqbal, 556 U.S. at 679.
dismiss

pursuant

to

Rule

12(b)(6), the Court “accept[s] all factual allegations in the
complaint as true, and draw[s] all reasonable inferences in the
plaintiff’s favor.”

Palin, 940 F.3d at 809.

The Court is not

required, however, “to credit conclusory allegations or legal
8

conclusions

couched

UnitedHealthcare
(quoting

as

factual

Ins.

Co.,

v.

Rabin,

Nielsen

974

F.3d

746

F.3d

allegations.”
183,
58,

188
62

Dane

(2d
(2d

Cir.
Cir.

v.
2020)

2014))

(ellipsis omitted).

“Accordingly, threadbare recitals of the

elements

of

of

a

cause

action,

statements, do not suffice.”

supported

by

mere

conclusory

Rabin, 746 F.3d at 62 (cleaned up).

III. Discussion
Because Plaintiff failed to file any opposition to Salotti’s
Rule 12(b)(6) argument that he had failed to state a plausible
claim against her under 42 U.S.C. § 1983, he has waived his
argument and Salotti’s Motion to Dismiss is granted.
The Court may properly dismiss a complaint where a plaintiff
fails

to

“discuss

[his

claims]

defendant’s] motion to dismiss.”
(2d

Cir.

2009).

Indeed,

in

his

opposition

to

[the

Gross v. Bell, 585 F.3d 72, 94

a

“‘failure

to

oppose

[the]

[d]efendant[’s] specific argument in a motion to dismiss is deemed
waiver of that issue’” raised by the defendant.

BYD Co. Ltd. v.

VICE Media LLC, 531 F. Supp. 3d 810, 821 (S.D.N.Y. 2021) (emphasis
added) (quoting Kao v. British Airways, PLC, 2018 WL 501609, at *5
(S.D.N.Y. Jan. 19, 2018), aff'd, 2022 WL 598973 (2d Cir. Mar. 1,
2022)); see also Oasis Cap., LLC v. Connexa Sports Techs. Inc.,
2023 WL 4304725, at *4 n. 3 (S.D.N.Y. June 30, 2023) (“Failure to
oppose an argument effectively waives it.” (citing BYD Co. Ltd.,
531 F.3d at 821)).
9

Here, Plaintiff failed to oppose Salotti’s 12(b)(6) argument
in the initial opposition brief he filed on October 28, 2023.
dkt. no. 70.)

(See

Then, when the Court extended the time by which

Plaintiff and other plaintiffs in the Tranche I Cases—each of whom
are represented by the same counsel—could respond to motions to
dismiss made on 12(b)(6) grounds, including Salotti’s, (see dkt.
no. 86 at 2), Plaintiff failed to do so.

The Court concludes that

Plaintiff’s repeated failure to address Salotti’s argument that he
has failed to state a plausible claim against her constitutes a
waiver and abandonment of his claim.

See BYD Co. Ltd., 531 F.3d

at 821; Oasis Cap., LLC, 2023 WL 4304725, at *4 n. 3.

Because

Plaintiff has twice abandoned his claim against Salotti, the claim
is dismissed.
The

See Gross, 585 F.3d at 94.

Court’s

conclusion

is

bolstered

by

the

fact

that

Plaintiff’s counsel, who also represents the plaintiffs in the
other Tranche I Cases who were given an additional opportunity to
address 12(b)(6) arguments in those cases, chose to file timely
oppositions to defendants’ 12(b)(6) arguments in those cases but
not in the instant one.

(See Ortiz v. Dinello, 23-cv-3547, dkt.

no. 63; Wilkerson v. Hammer, 23-cv-3397, dkt. no. 63.) Plaintiff’s
decision not to oppose Salotti’s merits argument for dismissal
while the other plaintiffs timely filed such oppositions reveals
a conscious choice not to oppose Salotti’s Motion to Dismiss.

10

Even if Plaintiff had not waived his claim against Salotti by
failing to file a substantive opposition brief, the Court would
still grant Salotti’s Motion to Dismiss for failure to state a
claim.

Plaintiff mentions Salotti only twice in his Complaint—

once to identify her as a “Mid-Level clinician” at DOCCS and once
to allege that she “tried [to treat] him [with] Topa[m]ax” shortly
after DOCCS transferred him from Wende to Five Points “but it did
not effectively treat [his] chronic pain,” his only substantive
allegation regarding Salotti.

(See Compl. ¶¶ 27, 323.)

This

allegation fails to allege plausibly that Salotti was personally
involved in a violation of Plaintiff’s rights under the Eighth
Amendment.
To state a claim under 42 U.S.C. § 1983, a “a plaintiff must
plead

that

each

Government-official

defendant,

through

the

official's own individual actions, has violated the Constitution.”
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
With respect to his claim of deliberate indifference under
the Eighth Amendment, that means that Plaintiff must plead that
Salotti “violated the Eighth Amendment by [her] own conduct,” which
requires that he plausibly allege that Salotti herself “‘acted
with deliberate indifference’—meaning that [she] personally knew
of and disregarded an excessive risk to [Plaintiff’s] health or
safety.”

Tangreti v. Bachmann, 983 F.3d 609, 619 (2d Cir. 2020)

(quoting Vega v. Semple, 963 F.3d 259, 273 (2d Cir. 2020)).
11

Under the Eighth Amendment, which prohibits prisons officials
from acting with “deliberate indifference to serious medical needs
of prisoners[,]” Estelle v. Gamble, 429 U.S. 97, 104 (1976), a
prison official can be held liable for deliberate indifference in
violation of the Eighth Amendment only if the plaintiff plausibly
alleges both an objective prong and a subjective prong. Salahuddin
v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006) (internal quotations
and citations omitted), abrogated in part on other grounds by
Kravitz v. Purcell, 87 F.4th 11 (2d Cir. 2023).

The plaintiff

must allege that the “the alleged deprivation of adequate medical
care [was] ‘sufficiently serious’” to satisfy the objective prong.
Id. at 279 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
To satisfy the subjective prong, the plaintiff must allege
“that the defendant acted with deliberate indifference to [his]
medical needs.”

Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003)

(citing Estelle, 429 U.S. at 104). So doing requires the plaintiff
to “show that a particular defendant ‘knows of and disregards an
excessive risk to inmate health or safety.’”
Farmer, 511 U.S. at 837).
of

subjective

Id. at 164 (quoting

This standard is akin to a mental state

recklessness,

as

used

in

criminal

law.

See

Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-840).
The plaintiff may demonstrate the defendant’s knowledge either by
alleging the official had actual knowledge of the risks to the
plaintiff’s health or by proving “that the risk was obvious or
12

otherwise must have been known to [the] defendant[.]”

Brock, 315

F.3d at 164 (citing Farmer, 511 U.S. at 842).
Plaintiff’s lone allegation regarding Salotti is insufficient
to satisfy the subjective prong. That he alleges Salotti attempted
to treat him with a particular medication shortly after he arrived
at Five Points creates no plausible inference that she knew about
his prior treatment, the extent of his pain, or any requests he
may have made for specific medications. Nor does Plaintiff provide
any indication that Salotti was aware that the Topamax she had
attempted to treat him with was addressing his pain insufficiently.
Without any allegation of this sort, the Court cannot plausibly
infer that Salotti was aware of any particular excessive risks to
Plaintiff’s health that existed at the short time he was housed at
Five Points, including any risks that his chronic pain would worsen
if she did not prescribe him particular medications or other forms
of treatment.

Accordingly, because Plaintiff has failed to allege

adequately that Salotti personally knew of and disregarded an
excessive risk of harm to his health, he has failed to satisfy the
subjective prong and to allege that Salotti was personally involved
in depriving him of adequate medical care.

See Brock, 315 F.3d

at 162-64; Tangreti, 983 F.3d at 619.
Therefore,

Plaintiff’s

claim

against Salotti is dismissed.

13

for

deliberate

indifference

IV.

Conclusion
Defendant Kristin Salotti’s Motion to Dismiss is granted.

The Clerk of the Court is directed to close docket entry number 66
and terminate Salotti from the docket in the above-captioned case.
SO ORDERED.
Dated:

September 24, 2024
New York, New York
__________________________________
LORETTA A. PRESKA
Senior United States District Judge

14