Smith v. Miller et al

Filing 38

OPINION & ORDER re: 32 MOTION to Dismiss the Complaint. filed by Captain Harris, Correction Officer J. Rufino, Sergeant Del Bianco, Correction Officer Allen, Correction Officer M. O'Rafferty, Correction Officer A. Riollano, Correction Officer F. Sioco. Defendants' partial motion to dismiss is GRANTED in part and DENIED in part. The First Amendment retaliation claims against Defendants Allen, Sioco, Rufino, Riollano, O'Rafferty, and Harris are dismissed wit hout prejudice. The First Amendment Free Exercise claims against Defendants Rufino and O'Rafferty are also dismissed without prejudice. Because no claims remain against Defendants Allen, Sioco, Rufino, Riollano, O'Rafferty, and Harris, t hey are dismissed from this action. Plaintiff's Eighth Amendment claims against Defendants Miller, Tabor, Diaz, Kothari, Heal, LLorens, and Del Bianco remain. The remaining Defendants are directed to file their answer on or before November 13 , 2017. The parties are further directed to appear for an in-person Initial Pretrial Conference scheduled for November 16, 2017 at 11:45am before Judge Roman and complete a Case Management Plan and Scheduling Order, which should be submitted to cha mbers prior to the conference. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 32. So Ordered., (Correction Officer M. O'Rafferty (individually and in his official capacity), Correction Officer A. Riollan o (individually and in his official capacity), Correction Officer J. Rufino (individually and in his official capacity), Correction Officer F. Sioco (individually and in his official capacity), Correction Officer Allen (individually and in his official capacity) and Captain Harris (individually and in his official capacity) terminated.) (Signed by Judge Nelson Stephen Roman on 10/23/17) Copies Mailed By Chambers. (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RAYSUN SMITH,
Plaintiff,
-againstCorrection Officer S. MILLER, individually and in his
official capacity; Correction Officer L. TABOR,
individually and in his official capacity; Correction
Officer D. KOTHARI, individually and in his official
capacity; Correction Officer DIAZ, individually and in
his official capacity; Correction Officer J. RUFINO,
individually and in his official capacity; Sergeant C.
LLORENS, individually and in his official capacity;
Sergeant G. HEAL, individually and in his official
capacity; ONE JOHN DOE NURSE, individually and
in his official capacity; Sergeant DEL BIANCO,
individually and in his official capacity; Correction
Officer A. RIOLLANO, individually and in his
official capacity; M. O'RAFFERTY, individually and
in his official capacity; CoU"ection Officer ALLEN,
individually and in his official capacity; Correction
Officer F. SIOCO, individually and in his official
capacity; JOHN DOE CORRECTION OFFICER;
Captain HARRIS, individually and in his official
capacity.

No. 15-CV-9561 (NSR)
OPINION & ORDER

Defendants.

NELSONS. ROMAN, United States District Judge
PlaintiffRaysun Smith, proceeding prose and informa pauperis, brings this 42 U.S.C.

§ 1983 action against Defendants Correction Officer ("C.O.") Miller, C.O. Tabor, C.0. Rufino,
C.O. Riollano, C.O. O'Rafferty, Sergeant Del Bianco, C.O. Sioco, C.O. Allen, C.O. Kothari,
Sergeant Llorens, and Captain Harris, alleging that they violated his constitutional rights while

J·~U<:CTRONICALLY

FILED

Copie~ t12\-z3(~11 ~
Chambers of Nelson S. Roman, U.S.D.J.

he was in the custody of the New York State Department of Corrections and Community
Supervision ("DOCCS"). Presently before the Court is a motion to dismiss portions of Plaintiffs
Complaint submitted by Defendants Rufino, Riollano, O'Rafferty, Del Bianco, Sioco, Allen, and
Harris. 1 Plaintiff has not submitted an opposition to this motion. For the following reasons,
Defendants' partial motion to dismiss is GRANTED in part and DENIED in part.
BACKGROUND
I.

Factual Allegations
The following facts are derived from the Complaint and are assumed to be hue for the

purposes ofthis motion.
a. Plaintiff's grievance and the January 5, 2015 incident
On December 17, 2014, while Plaintiff was incarcerated at Fishkill Correctional Facility
("Fishkill"), a corrections officer refused to take Plaintiffs picture and issue him a new
identification card because Plaintiffs hair was styled in cornrow braids.

(Comp!.~

23-27, ECF

No. 2.) On December 30, 2014, Plaintiff filed a grievance with the Inmate Grievance Resolution
Committee ("IGRC") at Fishkill, claiming that the officer's refusal to issue him an identification
card was an act of discrimination. (Id

~

28.) Plaintiff was interviewed by the acting IGRC

supervisor, Defendant Del Bianco, about the incident on January 5, 2015. (Id

~

29-30.) During

the interview, Defendant Del Bianco became angry and threatened to place Plaintiff in the
Secured Housing Unit ("SHU") if he did not take the cornrow braids out of his hair. (Id.

~

32.)

Defendant Del Bianco further threatened that "he would come up to Plaintiffs housing unit and

1
This motion does not address the claims against Defendants Diaz and Heal, who have yet to be served
with the Complaint, or Defendants John Doe C.O and John Doe Nurse, who have yet to be properly added to this
action. (Defs.' Mem. Supp. Mot Dismiss (Defs.' Mot."), at l, n.2, ECF No. 32.) Additionally, the remaining
defendants are not moving to dismiss Plaintiffs excessive force and failure to intercede claims against Defendants
Miller, Tabor, Kothari, and Captain Harris regarding the incident January 05, 2015. (Id. at I, n.3.)

2

check to see if Plaintiff had complied and if not he would kick his ass" or send one of his officers
to "handle it for him." (Id.

~

33.) Plaintiff thereafter left the grievance office and returned to his

housing unit. (Id.)
Upon returning to his housing unit, fearing that he would be sent to the SHU, Plaintiff
packed up all of his belongings as a precautionary measure.
housing unit to attend his daily assigned school program.

(Id.~

(Id.·~

35.) Plaintiff then left his

36.) When Plaintiff returned to

his housing unit at about three in the afternoon, Defendant Miller confronted Plaintiff and asked
him why his property was packed up.

(Id.~

43.) Plaintiff informed Defendant Miller about

Defendant Del Bianco's threat to send Plaintiff to the SHU, to which Defendant Miller
responded, "[G]et the fuck out of here, get away from my desk."

(Id.~

44.) Later that afternoon

as Defendant Miller was distributing inmate mail in Plaintiffs housing unit, Defendant Miller
instructed Plaintiff to go back to his room and unpack his property.

(Id.~

47.) Plaintiff responded

"O.K" while simultaneously laughing at a piece of mail he had just received. (Id.) Defendant
Miller, believing that Plaintiff was laughing at him, began yelling at Plaintiff. (Id.

~

48.)

Defendant Miller asked Plaintiff, "Did you just fucking laugh at me?" and instructed Plaintiff to
"go to [his) fucking room, unpack [his) shit" and not to come out for the night. (Id. )Defendant
Miller then escorted Plaintiff back to his room, and "in a threatening manner stood close to
Plaintiffs face and stated 'You think this is a game? Do you know where you are at?"' and
warned, "I'll be back." (Id.

~

49.)

Shortly thereafter, Defendant Miller returned to Plaintiffs room with Defendant Tabor.

(Id

~

53.)While Defendant Tabor stood outside of Plaintiffs room door, Defendant Miller

approached Plaintiff, stated "It's not so funny now," and punched Plaintiff in his left eye. (Id.
~

56-57.) Defendant Tabor then ran into the room and threw Plaintiff to the floor. (Id.

3

~

58.)

Plaintiff was subsequently placed in handcuffs. (Id

ii 59.) Defendants Diaz and Kothari ran into

Plaintiffs room and, along with Defendants Miller and Tabor, proceeded to kick and punch
Plaintiff in the face, head, and body while he remained restrained on the floor. (Id

ii 60-61.)

After nearly three minutes, Defendant Sgt. Llorens arrived to Plaintiffs room. (Id.
Defendant Llorens was present for part of the beating and did not intercede. (Id
was then raised to his feet and placed in a chokehold. (Id.
Defendants began beating Plaintiff once again. (Id
Defendant Llorens that he could not breathe. (Id

ii 62.)

ii 66.) Plaintiff

ii 64.) While in this chokehold,

ii 67.) Plaintiff attempted to inform

ii 68.) Defendant Llorens replied, "Now you

know how Eric Gardner felt," and laughed. (Id)
Defendant Heal arrived while these events were unfolding and also failed to intercede.
(Id.

ii 69.) Defendant Heal and the other officers involved in the beating eventually escorted

Plaintiff to the Regional Medical Unit ("RMU"). (Id
Plaintiff as they escmted him to the RMU. (Id

ii 70.) The officers continued to beat

ii 71.)

Once at the RMU, Plaintiff was seen by a nurse-Defendant John Doe Nurse- who
refused to document Plaintiffs injuries. (Id

ii 72-73.) The nurse told Plaintiff, "[T]he officers

said nothing happened to you and that's what I'm going to write" and that "even if something did
happen to you, you look like you deserved it, so I'll make sure there's no record of it because
they did their job." (Id.

ii 73-74.) Plaintiff did not receive medical treatment for his injuries.

Plaintiff was thereafter taken to the SHU. (Id

ii 77.)

On January 8, 2015, Plaintiff was informed that the IGRC had denied the grievance
Plaintiff filed regarding the alleged discrimination that took place on December 17, 2014. (Id

ii 78.) Plaintiff appealed the denial to the facility's superintendent on January 9, 2015. (Id ii 79.)
The superintendent denied Plaintiffs grievance appeal on January 13, 2015. (Id

4

ii 81.)

Thereafter, Plaintiff filed an appeal of the superintendent's decision to the Inmate Grievance
Program Central Office Review Committee ("CORC") on January 16, 2015. (Id

~

82.) Plaintiff

received a denial of his discrimination appeal from CORC on April 1, 2015. (Id

~

111.)

On January 11, 2015, Plaintiff filed an additional grievance with the IGRC regarding the
excessive use of force, discrimination, and denial of medical treatment that he experienced on
January 5, 2015.

(Id.~

80.) Plaintiff's grievance was denied by the superintendent on February 5,

2015. Plaintiff filed a timely appeal with CORC.

(Id.~

a denial of his excessive force appeal to CORC. (Id.

~

90.) On April 29, 2015, Plaintiff received

112.)

b. Acts of Retaliation
After Plaintiff filed his grievance for the events that took place on January 5, 2015,
Plaintiff alleges that many Defendants retaliated against him. First, on February 3, 2015,
Defendants Allen and the John Doe C.0. entered Plaintiff's cell to take a photograph of
Plaintiff's cellmate, Troy Evans. (Id.

~

83.) Mr. Evans was asleep at the time, however, and the

unnamed C.O. asked Plaintiff to wake him.
cellmate was not his job. (Id.
a verbal dispute. (Id.

~

~

(Id.~

84.) Plaintiff responded that waking his

85.) Defendant Allen, the other officer, and Plaintiff then got into

86.)

The next day, during lunchtime, Defendant Allen opened the food slot in Plaintiff's cell
~

88.) Defendant Allen then told

(Id.~

89.) Plaintiff alleges that Allen

door and intentionally threw two cups ofliquid at Plaintiff. (Id.
Plaintiff, "[S]ee what happens when you piss officers off."

was clearly referring to both the verbal altercation from the previous day and the January
incident. (Id.

~

5th

90.) Fearing for his safety, Plaintiff filed an official grievance relating to this

incident on February 4, 2015. (Id

~

92.)

5

A second incident occuned on February 10, 2015, when Plaintiff alleges he was issued a
retaliatory and false inmate misbehavior repmt by Defendant Rufino that was cosigned by
Defendant Sioco. (Id.

ii 94.) In the report, Defendant Rufino alleged that Plaintiff was yelling

into the gallery and refused to stop, stating "[G]o ahead, give me a ticket, I don't care." (Id.

ii 95.) At a disciplinary hearing held on February 18, 2015 regarding the hearing, Plaintiffs
cellmate admitted both orally and in a written statement that he was the one yelling into the
gallery and speaking to Defendant Rufino. (Id
of the allegations. (Id.

ii 99-98.) Nonetheless, Plaintiff was found guilty

ii 99.) Plaintiff subsequently filed an appeal to the superintendent to

address the retaliatory ticket on February 8, 2015. Captain Hanis denied the appeal and Plaintiff
filed an appeal with DOCCS on February 27, 2015. (Id.
denied on March 10, 2015. (Id

ii 100.) Plaintiffs DOCCS appeal was

ii 102.)

On February 22, 2015, Plaintiff also filed a grievance stating that he was being fed his
meals off of dirty trays in retaliation to the January 5, 2015 incident. (Id.

ii 104.)

Finally on March 1, 2015, Defendants Riollano and Rufino searched Plaintiffs cell. (Id

ii 105.) Shortly thereafter, on March 7, 2015, Defendants O'Raffe1ty and Rufino again searched
Plaintiffs cell. (Id.

ii 106.) During this second search, Defendants O'Rafferty and Rufino placed

their booted feet onto Plaintiffs pillow and left footprints on Plaintiffs bedding. (Id.

ii 107.)

Defendants O'Rafferty and Rufino also spit on Plaintiffs Muslim prayer rug during their search.

(Id.

ii 108.) Fearing for his safety and religious freedom, Plaintiff filed a grievance to address the

retaliatory actions of Defendant O'Rafferty. (Id

ii 109.)

Plaintiff initiated this action pursuant to 42 U.S.C. § 1983 on December 07, 2015,
alleging violations of his First and Eighth Amendment rights. Defendants filed the present

6

motion to dismiss portions of Plaintiff's Complaint on October 25, 2016. The motions is
unopposed.
STANDARD ON A MOTION TO DISMISS

Under Rule 12(b)(6), the inquiry for motions to dismiss is whether the complaint
"contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible
on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At!. Corp. v. Twombly,
550 U.S. 544, 570 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)
(applying same standard to Rule 12(c) motions). "While legal conclusions can provide the
framework of a complaint, they must be suppo1ted by factual allegations." Id. at 679. The Court
must take all material factual allegations as true and draw reasonable inferences in the nonmoving patty's favor, but the Comt is '"not bound to accept as tme a legal conclusion couched
as a factual allegation,' " or to credit "mere conclusory statements" or "[t]hreadbare recitals of
the elements of a cause of action." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
In determining whether a complaint states a plausible claim for relief, a district comt

must consider the context and "draw on its judicial experience and common sense." Id. at 679.
A claim is facially plausible when the factual content pleaded allows a court "to draw a
reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678.
"Where, as here, a plaintiff proceeds pro se, the comt must 'construe [] [his] [complaint]
liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].' "Askew v.

Lindsey, No. 15-CV-7496 (KMK), 2016 WL 499261, at *2 (S.D.N.Y. Sept. 16, 2016) (citing
Sykes v. Bank ofAm., 723 F.3d 399, 403 (2d Cir. 2013)). Yet, "the liberal treatment afforded to
pro se litigants does not exempt a pro se party from compliance with relevant rules of procedural
and substantive law.' "Id. (citing Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013)).

7

DISCUSSION
Liberally construed, Plaintiffs Complaint alleges claims under the First and Eighth
Amendments. Specifically, Plaintiff suggests First Amendment retaliation claims against
Defendants Allen, Rufino, Sioco, O'Rafferty, Riollano, and Harris and free exercise claims
against Defendants Rufino and O'Rafferty. Additionally, Plaintiffs Complaint implies an Eighth
Amendment failure to protect claim against Defendant Del Bianco. In the present motion,
Defendants assert that (1) Plaintiffs claims should be dismissed for failure to exhaust
administrative remedies, and (2) Plaintiff failed to state a claim for any constitutional violation.
The Comt will address each set of claims in turn.

I.

Exhaustion
Defendants first contend that several of Plaintiffs claims should be dismissed for failure

to exhaust administrative remedies, including (1) Plaintiffs claim against Defendant Allen for
throwing two cups of liquid at him; (2) Plaintiffs claim that he was being fed his meals off dirty
trays; (3) Plaintiffs claim regarding the search of his cell conducted on March 1, 2015; and (4)
Plaintiffs claim regarding the search of cell conducted on March 7, 2015. (Defs.' Mot. at 9.) The
Court finds that dismissal of Plaintiffs above claims for failure to exhaust is inappropriate at this
time.
Under the Prison Litigation Reform Act of 1995 ("PLRA"), "[n]o action shall be brought
with respect to prison conditions under [42 U.S.C. § 1983] or any other federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as
are available are exhausted." 42 U.S.C. § 1997e(a). "The PLRA's exhaustion requirement
'applies to all inmate suits about prison life, whether they involve general circumstances or

8

particular episodes, and whether they allege excessive force or some other wrong.'" Giana v.
Goard, 380 F.3d 670, 675 (2d Cir. 2004) (quoting Porter v. Nussle, 534 U.S. 516, 532, (2002)).
Exhausting all remedies "'means using all steps that the agency holds out, and doing so
properly (so that the agency addresses the issues on the merits)."' Washington v. Chaboty, No.
09-CV-9199, 2015 WL 1439348, at *6 (S.D.N.Y. Mar. 30, 2015) (quoting Hernandez v. Coffey,
582 F.3d 303, 305 (2d Cir. 2009)). "[B]ecause 'it is the prison's requirements, and not the
PLRA, that define the boundaries of proper exhaustion[,] ... [t]he exhaustion inquiiy ...
requires that [the court] look at the state prison procedures and the prisoner's grievance to
dete1mine whether the prisoner has complied with those procedures.'" Espinal v. Goard, 558
F.3d 119, 124 (2d Cir. 2009) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)).
A person detained or incarcerated at a DOCCS facility must exhaust all steps of the
Inmate Grievance Resolution ("IGR") Program ("IGRP"). See Robinson v. Henschel, No. 1OCV-6212, 2014 WL 1257287, at *10 (S.D.N.Y. Mar. 26, 2014). The IGRP provides a threetiered process for adjudicating inmate complaints: (1) the prisoner files a grievance with the IGR
committee ("IGRC"), (2) the prisoner may appeal an adverse decision by the IGRC to the
superintendent of the facility, and (3) the prisoner then may appeal an adverse decision by the
superintendent to the Central Office Review Committee ("CORC"). See Espinal, 558 F.3d
at 125; see also 7 N.Y. Comp. Codes R. & Regs. § 701.5.
In the present case, Defendants argue that several of Plaintiffs retaliation claims should
be dismissed because Plaintiff did not properly exhaust all available administrative remedies. In
suppmt of this argument, Defendants provide a declaration from the Assistant Director of the
Inmate Grievance Program at DOCCS, Jeffrey Hale, along with two exhibits, purpmting to
demonstrate that Plaintiff never appealed to CORC his grievances relating to the above claims.

9

(ECF No. 34.) Despite this action being at the motion to dismiss phase of litigation, Defendants
assert that the Court may consider their external evidence. This Court, however, disagrees.
Courts typically "may not look beyond the four corners of the complaint in considering a
motion to dismiss." Mayo v. Federal Government, SS8 Fed. App'x SS, S6 (2d Cir. 2014). "A
complaint 'is deemed to include any written instrument attached to it as an exhibit or any
statements or documents incorporated in it by reference.'" Nicosia v. Amazon.com, Inc., 834 F.3d
220, 230 (2d Cir. 2016) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, lSS (2d Cir.
2002)). Where a document is not attached as an exhibit nor incorporated by reference, a comt
"may neve1theless consider it where the complaint 'relies heavily upon its terms and effect,'
thereby rendering the docUIIlent 'integral' to the complaint." Id. (quoting DiFolco v. MSNBS
Cable L.L.C., 662 F.3d 104, ll l (2d Cir. 2010)).
In the context of§ 1983 claims, courts have taken notice of administrative records
outside of the pleadings to determine whether a plaintiffs claims have been properly exhausted.
As this Court has noted, however, "in those cases the complaint a) was the standard prose form
complaint that has a check-box regarding exhaustion, b) contained allegations clearly stating that
the inmate had exhausted his administrative remedies, or c) clearly pointed to the fact that the
inmate had, in fact, not exhausted." Colon v. New York State Dep 't of Corr. & Cmty.
Supervision, No lS-CV-7432 (NSR), 2017 WL 41S7372, at *S (S.D.N.Y Sept. lS, 2017). In such
cases, the outside records could be considered by the court because they were relied on and/ or
incorporated by plaintiffs explicit references to administrative exhaustion in the complaint.
Where none of these conditions is satisfied, however, this Court has refused to look beyond the
four corners of the complaint for the purposes of a motion to dismiss. Id

10

In the case at hand, Plaintiff neither incorporated by reference nor relied on the
administrative records that Defendants now ask this Court to consider. Although Plaintiff
explicitly states that he "exhausted all of his administrative remedies trying to address this
violent incident," Plaintiffs allegation of administrative exhaustion refers only to the January 5th
incident. (See Comp!. 'ii 113.) Plaintiff does not claim to have exhausted the administrative
remedies for any of the claims at issue in Defendants' present motion. Neither does Plaintiff
assert he appealed the grievances relating to these claims to the highest level-the superintendent
ofCORC.
Moreover, Plaintiff was under no obligation to affirmatively plead or demonstrate
administrative exhaustion in the Complaint. As the Second Circuit has recognized, "[f)ailure to
exhaust administrative remedies is an affirmative defense under the PLRA, not a pleading
requirement." Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (emphasis added) (internal
citations omitted); see also Jones v. Bock, 549 U.S. 199, 216 (2007)("We conclude that failure to
exhaust is an affomative defense under the PLRA, and that inmates are not required to
specifically plead or demonstrate exhaustion in their complaints"); contra Smart v. Goard, 441 F.
Supp. 2d 631, 637 (S.D.N.Y. 2006) ("As exhaustion of administrative remedies is a prerequisite
to bringing suit, an inmate plaintiff necessarily refers to and relies on documents exhibiting proof
of exhaustion. Because the exhaustion issue is an integral pait of the prisoner's claims, the Court
may refer to materials outside of the complaint on a 12(b)(6) motion in dete1mining whether a
plaintiff exhausted."), reconsidered, No. 04-CV-8850 (RWS), 2008 WL 591230, at *2
(recognizing that the Comt's previous opinion "[did] not faithfully capture the subtlety of
exhaustion doctrine in the Second Circuit" and that the Court should have addressed nonexhaustion as an affirmative defense).

11

Therefore, Defendants' records regarding Plaintiffs CORC appeals were neither
incorporated by reference nor relied upon by Plaintiff in the Complaint. As such, the Court will
not consider Defendants' documentary evidence of non-exhaustion at this juncture.
While it is imperative to resolve the issue of exhaustion as early as possible, if"it is not
clear from the face of the complaint whether the plaintiff exhausted, a Rule 12(b)(6) motion is
not the proper vehicle." McCoy v. Goord, 255 F. Supp. 2d 233, 249 (S.D.N.Y. 2003). In the
present case, it is not clear from the face of the complaint that Plaintiff has failed to exhaust his
administrative remedies. Accordingly, dismissal of Plaintiffs claims for lack of exhaustion is
improper at this time. The Court now addresses each of Plaintiffs claims individually.
II. First Amendment Retaliation Claims

The Second Circuit urges caution when addressing retaliation claims brought by
prisoners because "claims by prisoners that particular administrative decisions have been made
for retaliatory purposes are prone to abuse. Virtually every prisoner can assert such a claim as to
every decision which he or she dislikes." Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983).
Therefore, courts should "examine prisoners' claims of retaliation with skepticism and particular
care." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). Accordingly, "a complaint which
alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone."

Flaherty, 713 F.2d at 13. To survive a motion to dismiss, a prisoner asserting a retaliation claim
must "allege '(l) 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 and the adverse action."' Davis v. Goord, 320 F.3d 346, 352 (2d Cir.
2003)(quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001)).

12

Here, Plaintiff alleges that many of the Defendants engaged in acts of retaliation after he
filed a grievance reporting Defendants Miller, Tabor, Diaz, Kothari, Heal, and Llorens for their
alleged use of excessive force on January 5, 2015. 2 As the Second Circuit has recognized, the
filing of prison grievances is a constitutionally protected activity. Davis, 320 F.3d at 352.
Plaintiff, therefore, meets the first prong of the test for retaliation claims. The Court now turns to
whether Plaintiffs individual retaliation claims satisfy the remaining portions of the tripartite
test.

a. Retaliation Claim Against Defendant Allen
Plaintiff fails to raise a plausible claim of retaliation against Defendant Allen. In the
Complaint, Plaintiff alleges that on February 4, 2015, Defendant Allen "intentionally threw two
cups ofliquid at Plaintiff," and stated, "see what happens when you piss officers off." (Comp!.
83-89.)
Assuming, arguendo, that Defendant Allen's behavior constitutes an adverse action,
Plaintiff nonetheless fails to allege a causal connection between his protected activity and
Defendant Allen's conduct with sufficient specificity. The alleged causal connection "must be
sufficient to support the jnference that the speech played a substantial part in the [) adverse [)
action." Walker v. Schriro, 2013 WL 1234930, at *8 (S.D.N.Y Mar. 26, 2013) (internal quotation
marks omitted). Both direct and circumstantial evidence can support such an inference.
However, "[e ]ven at the motion to dismiss stage, the inmate must allege more than his personal
belief that he is a victim of retaliation." Id. (internal quotations omitted). "Conclusory allegations
of retaliation are not sufficient; the plaintiff must allege facts from which retaliation may

2

Specifically, Plaintiff alleges that Defendants engaged in acts ofretaliation based on "the incident of
January 5, 2015." Construing prose Plaintiff's Complaint liberally to raise the strongest argument it suggests, the
Court reads the Complaint as alleging retaliation against Plaintifrs constitutionally-protected activity of filing a
prison grievance regarding the events that transpired on January 5, 2015.

13

plausibly be inferred." Jabot v. MHU Counselor Roszel, No. 14-CV-3951 (VB), 2016 WL
6996173, at *6 (S.D.N.Y Nov. 29, 2016).
Here, Plaintiff fails to state facts from which retaliation may be inferred. "Generally,
alleged retaliation motivated by an action the prisoner took which did not personally involve the
prison officials is insufficient for a retaliation claim." Ortiz v. Russo, No. 13-CV-5317 (ER),
2015 WL 1427247, at* 11 (S.D.N.Y Mar. 27, 2015) (citing Wright v. Goard, 554 F.3d 255, 274
(2d Cir. 2009) (dismissing a pro se prisoner's retaliation claim against a corrections officer
where the alleged basis for retaliation was a letter the prisoner wrote that neither named nor
addressed the defendant)). Here, Plaintiff merely makes the conclusory assertion that Defendant
Allen's statement, "see what happens when you piss officers off," referred to the January 5th
incident and Plaintiffs subsequent grievance. 3 Defendant Allen, however, had no apparent
involvement in the January 5th incident and Plaintiff fails to allege any facts that would support a
finding that Defendant Allen was personally motivated by Plaintiff's grievance. While there may
exist instances in which retaliation claims may be established against defendants who were not
personally involved in the original incident, at a minimum, plaintiffs must allege that such
defendants have personal knowledge of the protected activity that purportedly motivated the
retaliatory conduct. In the present case, Plaintiff neither alleges that Defendant Allen was
somehow personally involved in the January 5th incident, or even that Defendant Allen knew of

3 Plaintiffs claim that Defendant Allen was also retaliating against him due to a "verbal dispute" they had
on the previous day also fails. While "case law in this Circuit indicates that a prisoner's oral complaints to a
correction officer may serve as the basis for a First Amendment retaliation claim," Tirado v. Shutt, No. 13-CV-2848,
2015 WL 774982, at *9 (S.D.N.Y Feb 23, 2015), courts have distinguished between verbal complaints and mere
confrontations. See Mcintosh v. United States, No. 14-CV-7889 (KMK), 2016 WL 1274585, at *27 (S.D.N.Y. Mar.
31, 2016). Verbal confrontations-like the "verbal dispute" between Plaintiff and Defendant Allen, in which
Plaintiff was not asserting nor protecting any discernible right-do not constitute protected activity and cannot act as
the basis for a retaliation claim.

14

the incident. Absent such allegations, Plaintiff fails to establish the necessary causal connection
between Defendant Allen's adverse action and Plaintiffs protected conduct.

b. Retaliation claim Against Defendants Rufino, Sioco, and Harris-False
Misbehavior Report
Similarly, Plaintiff fails to establish the necessary causal connection between his
protected activity-filing a grievance-and the alleged retaliatory conduct of Defendants Rufino,
Sioco, and Harris. Plaintiff alleges that Defendant Rufino issued him a retaliatory and false
inmate misbehavior report, signed by Defendant Sioco, accusing Plaintiff of yelling into the
prison gallery and refusing orders to stop. (Comp!.

'ii 94-95.) Despite written admission from

Plaintiffs cellmate that it was he who was yelling into the gallery, Plaintiff was found guilty of
the allegations at a hearing on Febmary 18, 2015. (Id.

'if 98-99.) Plaintiff claims he was found

guilty of the false allegations in retaliation for his grievance relating to the January

5th

incident.

(Id.) Plaintiff appealed the retaliatory false ticket, but his appeal was denied by Captain Harris.
(Id.

'if 101.)
Like his allegations against Defendant Allen, Plaintiffs allegations against Defendants

Rufino, Sioco, and Harris lack facts from which a retaliatory motive may be inferred. In
evaluating whether a causal connection exists between a protected activity and the filing of an
allegedly retaliatory false misbehavior report, comis have considered a number of factors,
"including: (i) the temporal proximity between the protected activity and the alleged retaliatory
act; (ii) the inmate's prior good disciplinary record, (iii) vindication at a hearing on the matter;
and (iv) statements by the defendant concerning his motivation." Ortiz, 2015 WL 1427247, at
*11.
As to the first factor, Plaintiff filed his grievance relating to the January

5th

incident on

January 11, 2015. (Comp!. 'if 80.) The false misbehavior report was issued on Febmary 10, 2015.
15

(Id.

if 94.) While "[t]he Second Circuit has not drawn a bright line defining the outer limits

beyond which a temporal relationship is too attenuated to establish causation," "courts in this
Circuit generally hold that a gap longer than two months severs the inferred causal relationship."
Graham v. Macy's Inc., No. 14-CV-3192 (PAE), 2016 WL 354897, at *9 (S.D.N.Y Jan. 28,
2016)(intemal quotation marks and citations omitted), ajf'd., 675 F. App'x 81 (2d Cir. 2017). In
the present case, Plaintiffs grievance and the false misbehavior report were separated by only
one month. The temporal proximity between Plaintiffs protected activity and the alleged
retaliatory action could thus support an inference of retaliatory intent.
The remaining factors, however, do not support an inference of retaliation. The
Complaint is silent regarding Plaintiff's previous disciplinary record, Plaintiff was found guilty
at a subsequent hearing, and Plaintiff does not allege any statements by Defendants regarding
their motivation. Moreover, Defendants Rufino, Sioco, and Harris do not appear to have been
personally involved in the January 5th incident and Plaintiff fails to allege that Defendants
Rufino, Sioco, and Harris even knew of the incident and Plaintiff's subsequent grievance.
Plaintiff, therefore, fails to raise a retaliation claim against Defendants Rufino, Sioco, and Harris
with regards to the false misbehavior report.
c. Retaliation claims against Rufino, Riollano, and O'Raffertv-Cell searches
Plaintiff next alleges that Defendants Rufino, Riollano, and O'Rafferty engaged in
retaliation by searching his cell on two occasions-first on March 1, 2015 and again on March 7,
2015. (Comp!. if 105-07.) Plaintifffwther alleges that in the course of the second search,
Defendants Rufino and Riollano placed their booted feet on his pillow and blanket and spit on
his Muslim prayer rug. Id. Plaintiff refers to these searches as "retaliatory actions" in the
Complaint, but does not specify what protected conduct Defendants were retaliating against.

16

Liberally construed, Plaintiffs claim appears to allege that Defendant Rufino, Riollano, and
O'Rafferty retaliated against Plaintiff due to his appeal of the false misbehavior report issued by
Defendant Rufino on February 10, 2015. 4
However, Plaintiffs allegations are insufficient to raise a retaliation claim against
Defendants Rufino, Riollano, and O'Rafferty. Although appeals of misbehavior reports-like the
filing ofgrievances-<:onstitute protected conduct, Woodv. Cty. a/Sullivan, No. OO-CV-4339
(DLC), 2002 WL 31158822, at *10 (S.D.N.Y Sept. 27, 2002), Plaintiffs allegations do not
satisfy the remaining elements of a retaliation claim.
Specifically, the alleged conduct of Defendants Rufino, Riollano, and O'Rafferty does
not amount to an adverse action. An adverse action is any action "that would deter a similarly
situated individual of ordinary firmness from exercising his or her constitutional rights." Id at
353 (internal quotation marks omitted). Otherwise, the act is "de minimis and therefore outside
the ambit of constitutional protection." Id (internal quotation marks omitted). "In making this
determination, the court's inquiry must be 'tailored to the different circumstances in which
retaliation claims arise,' bearing in mind that '[p]risoners may be required to tolerate more ...
than average citizens, before a [retaliatory] action taken against them is considered adverse."

Davis, 320 F.3d at 353 (quoting Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001)).
Here, Plaintiff accuses Defendants Rufino, Riollano, and O'Rafferty of conducting
retaliatory cell searches. "The Second Circuit has not addressed whether a cell search can
constitute an adverse action for purposes of a First Amendment retaliation claim." Mateo v.

4

While the Court notes that the Complaint could also be read as alleging that Defendants Rufino, Riollano,
and O'Rafferty were retaliating against Plaintiff's grievance regarding the January 5th incident, such a claim would
fail. Defendants Rufino, Riollano, and O'Rafferty were not personally involved in the January 5th incident and
Plaintiff fails to allege any other causal connection between their actions and that grievance. Defendant Rufino,
however, issued the false misbehavior report and participated in both searches, thus establishing a greater causal
connection between his actions and Plaintiff's protected conduct.

17

Alexander, No. 10-CV-8427 (LAP) (DCF), 2012 WL 864805, at *4 (S.D.N.Y Mar. 14, 2012).
However, numerous district comts in this circuit have recognized that while searches alone may
not be actionable, prisoners "can assert a retaliation claim for [defendants'] conduct in
conjunction with the cell search." Rodriguez v. McC/enning, 399 F. Supp. 2d 228, 239 (S.D.N.Y.
April 22, 2005); see also Stewardv. Richardson, No. 15-CV-9034 (VB), 2016 WL 7441708, at
*5 (S.D.N.Y. Dec. 27, 2016) ("Considered collectively, as they ought to be, plaintiffs
allegations of retaliatory cell searches and destruction of his property are sufficient to state a
claim.").
Plaintiff does not allege that Defendant Riollano engaged in any retaliatory action beyond
the search of his cell. (See Comp!.

if 105-07 .) Because cell searches alone have not been found

actionable as adverse actions in this Circuit, the retaliation claim against Defendant Riollano is
dismissed.
Defendants Rufino and O'Rafferty, however, are alleged to have stepped on Plaintiffs
bedding and spit on Plaintiff's Muslim prayer rug while conducting their search. (Comp/.

if 107-

8.) The Court, therefore, considers the cell search in conjunction with Defendants' other conduct.
Even in conjunction, however, Defendants' acts do not constitute an adverse action sufficient to
support Plaintiffs retaliation claim. Courts in this circuit have typically only found cell searches
to constitute adverse actions when they involve significant deprivations or destruction of
property. See, e.g., Smith v. City o/New York, No. 14-CV-5927, 2017 WL 2172318, at *4
(S.D.N.Y May 16, 2017)("[T]he confiscation or destruction of property taken at the time of
searches may constitute an adverse action" (internal quotation marks omitted)); Smith v. City of
New York, No. 03-CV-7576, 2005 WL 1026551, at *3 (S.D.N.Y May 3, 2005) ("[R]etaliatory
destruction of a prisoner's personal property has previously been found substantial enough to

18

qualify as an adverse action"). Absent such deprivations, courts have been reluctant deem cell
searches adverse actions. See Shannon v. Venettozzi, No. 13-CV-4530 (KBF), 2015 WL 114179,
at *6 (S.D.N.Y. Jan 8, 2015) (recognizing that "courts in this district have found that destruction
of personal property is often an adverse action, but minor cases of withholding property are
typically de minimis"), ajf'd in part, vacated inpart, 670 Fed App'x 29 (2d Cir. 2016); Smith,
2017 WL 2172318, at *4 (ruling that Defendant's act of throwing out an inmate's food and bed
linen was not a substantial enough injury to constitute an adverse action because it would not
deter a similarly situated individual of ordinary firmness form exercising his or her constitutional
rights); Fann v. Arnold, No. 14-CV-6187 (FGP), 2016 WL 2858927, at *2 (W.D.N.Y. May 16,
2016) (ruling that the plaintiffs allegation that "all of his property was thrown in the shower"
was a de minim is act of retaliation").
Here, the alleged retaliatory actions of Defendants Rufino and O'Rafferty during the cell
search-while inappropriate and harassing-did not deprive Plaintiff of his property nor cause
its destruction. Accordingly, their actions are de minimis and do not constitute an adverse action.
Plaintiffs retaliation claims against Defendants Rufino and O'Raffe1ty are therefore dismissed.
d. Retaliation Claims Against Unnamed Defendants-Dirty Trays
For his final retaliation claim, Plaintiff alleges that he was being fed meals off of dirty
trays "in retaliation for the incident of January 5, 2015." (Comp!. if 104.) Plaintiff fails, however,
to identify the parties responsible for these retaliatory actions or even name a "John Doe"
defendant. Without more specific factual allegations, no causal connection between Plaintiffs
protected conduct and the retaliatory acts may be inferred. Plaintiffs retaliation claim regarding
the ditty trays is therefore dismissed. See Flynn v. Ward, No. 15-CV-1028, 2016 WL 1357737, at

19

*14 (N.D.N.Y. Apr. 5, 2016) (ruling that "Plaintiffs failure to identify the parties responsible for
the [retaliatory] incidents requires the Court to dismiss these retaliation claims").

II.

First Amendment Free Exercise Claim
Plaintiffs allegation that he feared for his religious freedom after Defendants Rufino and

O'Rafferty spit on his Muslim prayer rug during the March 7, 2015 search of his cell fails to
raise a First Amendment Free Exercise claim.
"The Free Exercise Clause of the First Amendment is an 'unflinching pledge to allow our
citizemy to explore ... religious beliefs in accordance with the dictates of their conscience."

Jackson v. Mann, 196 F.3d 316, 320 (2d Cir. 1999) (quotingPatrickv. LeFevre, 745 F.2d 153,
157 (2d Cir. 1984)). "Prisoners have long been understood to retain some measure of the
constitutional protection afforded by the First Amendment's Free Exercise Clause." Ford v.

McGinnis, 352 F.3d 582, 588 (2d Cir. 2003). However, the Second Circuit has acknowledged
that, "although prisoners do not abandon their constitutional rights at the prison door, lawful
incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a
retraction justified by the considerations underlying our penal system." Saluhuddin v. Goard,
467 F.3d 263, 274 (2d Cir. 2006) (internal citations and alterations omitted). Accordingly, the
First Amendment protection afforded to inmates must be balanced with "the interests of prison
official charged with complex duties arising from administration of the penal system." Ford, 352
F.3d at 588.
To establish a Free Exercise claim, a plaintiff must typically show that a sincerely held
religious belief was substantially burdened by conduct that was not reasonably related to a
legitimate penological interest. Turner v. Sidorowicz, No. 12-CV-7048 (NSR), 2016 WL

20

3938344, at *5 (S.D.N.Y July 18, 2016); Hollandv. Goard, 758 F.3d 215, 220-23 (2d Cir.
2014). For the purposes of this analysis, a "substantial burden" exists when "the state put[s]
substantial pressure on an adherent to modify his behavior and violate his beliefs." Jolly v.

Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (internal quotation marks omitted). However, the
Second Circuit has questioned the vitality of the "substantial burden" test following the concern
articulated by the Supreme Court in Employment Division v. Smith, 494 U.S. 872 (1990), that
. application of the test "embroils comts in the unacceptable business of evaluating the relative
merits of differing religious claims." Holland, 758 F.3d at 220 (internal quotation marks
omitted).
While this Court recognizes that "[i]t is not within the judicial ken to question the
centrality of a particular beliefs or practice to a faith," such a concern does not apply to the
present action. See Smith, 494 U.S. at 887 (quoting Hernandez v. C.lR., 490 U.S. 680, 686
(1989)). Here, Plaintiff has failed to allege any burden on his religious beliefs. In such caseswhere the significance or centrality of a religious practice is not at issue-comts in this circuit
have engaged in the "substantial burden" analysis. See Colliton v. Bunt, 15-CV-6580 (CS), 2016
WL 7443171, *11, n. 15 (S.D.N.Y. Dec. 27, 2016)(recognizing that the concerns articulated in

Holland did not apply where the plaintiff failed to allege any burden on his religious beliefs),
appeal dismissed, (Jan. 4, 2017); Newdow v. Peterson, 753 F.3d 105, 109-10 (2d Cir. 2014)
(affirming the district court's dismissal of a Free Exercise claim where atheist plaintiffs failed to
identify how the placement of"In God We Trust" on U.S. cuffency burdened their religious
activity). Because Plaintiff makes no allegations regarding how Defendants' actions pressured
him to modify his behavior or violate his beliefs, he fails to state a Free Exercise Claim against
Defendants Rufino and O'Rafferty.

21

III.

Eighth Amendment Claim
Plaintiff's Complaint, liberally constrned, also suggests a possible Eighth Amendment

claim against Defendant Del Bianco for inciting or encouraging the assault that transpired on
January 5, 2015. Plaintiff alleges that on January 5, 2015, Defendant Del Bianco, the acting
IGRC supervisor, "became angry and irate and began screaming and threatening him," saying
that he was going to "kick his ass" and "if [he] could not make it up to Plaintiff's housing unit
that day, then one of his officers would come up there and handle it for him." (Comp!. ii 33.)
Further, Plaintiff claims that shortly before he was assaulted in his cell, Defendant Miller-the
same Defendant who is alleged to have initiated the assault on Plaintiff-stated he was going to
call Defendant Del Bianco. (Comp!. ii 41.)
To establish an Eighth Amendment claim, a prisoner must satisfy a two-part test,
composed of an objective and subjective element. See, e.g., Jabbar v. Fischer, 683 F.3d 54, 57
(2d Cir. 2012). Objectively, the conduct at issue, evaluated "in light of contemporary standards
of decency," Wright v. Goard, 554 F.3d 255, 268 (2d Cir. 2009) (internal quotation marks
omitted), must be "sufficiently serious ... to reach constitutional dimensions," Romanov.
Howarth, 998 F.2d 101, 105 (2d Cir. 1996) (internal quotation marks omitted). The subjective
element requires the prison official accused of violating the Eighth Amendment to have
possessed a "wanton state of mind" in carrying out the conduct at issue. Branham v. Meachum,
77 F.3d 626, 630 (2d Cir. 1996) (internal quotation marks omitted).
Further, courts have allowed Eighth Amendment claims against prison officials who have
not directly inflicted physical injuries on prisoners, but whose "deliberate indifference" to a
"substantial risk of serious harm" nonetheless contributed to such injury. See, e.g., Randle v.
Alexander, 960 F. Supp. 2d 457, 472 (S.D.N.Y. 2013) (finding allegations that a prison guard

22

forced two inmates to fight each other sufficient to raise both excessive use of force and failure
to protect Eighth Amendment claims against that guard); Bouknight v. Shaw, No. 08-CV-S 187
(PKC), 2009 WL 969932, at *4 (S.D.N. Y. Apr. 6, 2009) (recognizing that "a prisoner can state a
claim under the Eighth Amendment against a conections officer who spreads malicious rumor
about him ifthe rumors incited other inmates to assault [the plaintiff! ... , thereby placing him at
grave risk of physical harm" (internal quotation marks omitted)); (Quezada v. Fischer, No. 9: 13CV-0086 (MAD)(TWD); 2016 WL 1118451, at *2 (N.D.N.Y. Mar. 22, 2016) (adopting
Magistrate Judge's finding that a conection officer's "instigation and encouragement [of other
conection officers] to physically assault [p]laintiff, coupled with the alleged occunence of the
ensuing beating on him, was sufficient to state an Eighth Amendment harassment claim").
Here, Plaintiff suggests that Defendant Del Bianco intentionally incited and encouraged a
violent attack on him by other prison guards. Such an allegation clearly satisfies the firstobjective-prong of the Eighth Amendment inquiry; there is no question that instructing or
encouraging other guards to attack an inmate poses an objectively serious risk of harm.
Plaintiff's allegations also easily satisfy the second-subjective-portion of the test, as
"[i]ntentionally exposing an inmate to the risk of harm ... with no penological purpose is
indicative of deliberate indifference to the inmate's safety at best and manifests an intent to harm
the inmate at worst." Mirabella v. Correction Officer O'Keenan, No. 15-CV-142S, 2016 WL
4678980, at *4 (W.D.N.Y. Sept. 7, 2016) (internal quotation marks omitted); see also Farmer v.

Brennan, 511 U.S. 825, 835 (1994) ("While .. deliberate indifference entails something more
than mere negligence, the cases are also clear that it is satisfied by something less than acts or
omissions for the very purpose of causing harm or with knowledge that harm will
result."(emphasis added)); Randle, 960 F. Supp. 2d at 474 (S.D.N.Y. 2013)(ruling that a forced

23

fight between inmates "serve[d] no legitimate penological purpose and reflect[ed] indifference to
inmate safety, if not malice toward those forced to engaged in the illicit violence"). Thus,
Plaintiff has successfully raised an Eighth Amendment claim against Defendant Del Bianco and
dismissal is inappropriate at this time.

CONCLUSION
For the foregoing reasons, Defendants' partial motion to dismiss is GRANTED in part
and DENIED in prut. The First Amendment retaliation claims against Defendants Allen, Sioco,
Rufino, Riollano, O'Rafferty, and Harris are dismissed without prejudice. The First Amendment
Free Exercise claims against Defendants Rufino and O'Rafferty are also dismissed without
prejudice. Because no claims remain against Defendants Allen, Sioco, Rufino, Riollano,
O'Raffe1ty, and Harris, they are dismissed from this action. Plaintiff's Eighth Amendment
claims against Defendants Miller, Tabor, Diaz, Kothari, Heal, LLorens, and Del Bianco remain.
The remaining Defendants ru·e directed to file their answer on or before November 13,
2017. The patties are further directed to appear for an in-person Initial Pretrial Conference
scheduled for November 16, 2017 at 11 :45am before Judge Roman and complete a Case
Management Plan and Scheduling Order, which should be submitted to chambers prior to the
conference. The Clerk of the Court is respectfully directed to terminate the motion at ECF No.
32.

Dated:

October 2~, 2017
White Plains, New York

United States District Judge

24

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Rev. Jan. 2012

-------------------------------------------------------------x

Plaintiff(s),

CIVIL CASE DISCOVERY PLAN
AND SCHEDULING ORDER

Defendant(s).

_ _ cv ____ (NSR)

- against -

-------------------------------------------------------------x
This Civil Case Discove1y Plan and Scheduling Order is adopted, after consultation with
counsel, pursuant to Fed. R. Civ. P. 16 and 26(1):
I.

All pmties [consent] [do not consent] to conducting all further proceedings before a
Magistrate Judge, including motions and trial, pursuant to 28 U.S.C. § 636(c). The
pmties are free to withhold consent without adverse substantive consequences. (If
all pmties consent, the remaining paragraphs of this form need not be completed.)

2.

This case [is] [is not] to be tried to ajmy.

3.

Joinder of additional pmties must be accomplished by _ _ _ _ _ _ _ _ __

4.

Amended pleadings may be filed until _ _ _ _ _ _ _ __

5.

Interrogatories shall be served no later than _ _ _ _ _ _ _ _, and responses
thereto shall be served within thi1ty (30) days thereafter. The provisions of Local
Civil Rule 33.3 [shall] [shall not] apply to this case.

6.

First request for production of documents, if any, shall be served no later than

7.

Non-expe1t depositions shall be completed by _ _ _ _ _ _ _ _ _ _ __
a.

b.

Depositions shall proceed concurrently.

c.

8.

Unless counsel agree othe1wise or the Court so orders, depositions shall not
be held until all pmties have responded to any first requests for production
of documents.

Whenever possible, unless counsel agree otherwise or the Court so orders,
non-party depositions shall follow party depositions.

Any fu1ther interrogatories, including expe1t interrogatories, shall be served no later
than - - - - - - - - - -

9.

Requests to Admit, if any, shall be served no later than _ _ _ _ _ _ _ _ __

10.

Expert reports shall be served no later than _ _ _ _ _ _ _ _ __

11.

Rebuttal expert reports shall be served no later than _ _ _ _ _ _ _ _ _ _.

12.

Expert depositions shall be completed by _ _ _ _ _ _ _ _ __

13.

Additional provisions agreed upon by counsel are attached hereto and made a part
hereof.

14.

ALL DISCOVERY SHALL BE COMPLETED BY _ _ _ _ _ _ __

15.

Any motions shall be filed in accordance with the Comt' s Individual Practices.

16.

This Civil Case Discove1y Plan and Scheduling Order may not be changed without
leave of Comt (or the assigned Magistrate Judge acting under a specific order of
reference).

17.

The Magistrate Judge assigned to this case is the Hon. _ _ _ _ _ _ _ _ __

18.

If, after ent1y of this Order, the parties consent to trial before a Magistrate Judge,
the Magistrate Judge will schedule a date certain for trial and will, if necessmy,
amend this Order consistent therewith.

19.

The next case management conference is scheduled for--------~
at
. (The Comt will set this date at the initial conference.)

SO ORDERED.
Dated: White Plains, New York

Nelson S. Roman, U.S. District Judge