Johnson v. Tucker et al
Filing
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OPINION AND ORDER re: 21 MOTION to Dismiss . filed by Carol Chiocchi. For the reasons stated above, Defendants' partial Motion To Dismiss is granted as toDefendant Chiocchi. This Opinion does not impact Plaintiffs outstanding cla ims against theremaining Defendants. Moreover, because this is the first adjudication of Plaintiffs claims onthe merits, the dismissal is without prejudice. If Plaintiff wishes to file an amended complaint,Plaintiff must do so within 30 days of the d ate of this Opinion. Plaintiff should include withinthat amended complaint any changes to correct the deficiencies identified in this Opinion thatPlaintiff wishes the Court to consider. Plaintiff is advised that the amended complaint willreplace, not supplement, the original complaint. The amended complaint must contain all of theclaims and factual allegations Plaintiff wishes the Court to consider, including those againstDefendants who have not yet filed a Motion To Dismiss. The Court will not consider factualallegations contained in supplemental letters, declarations, or memoranda. If Plaintiff fails toabide by the 30-day deadline, his claims against Chiocchi may be dismissed with prejudice andthe Court will proceed with the case against the remaining Defendants.The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No.21), and to mail a copy of this Opinion & Order to Plaintiffs address on the docket. Carol Chiocchi (In Official Capacity) and Carol Chiocchi (Individual Capacity) terminated. (Signed by Judge Kenneth M. Karas on 6/12/2018) (rro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHRISTOPHER JOHNSON,
Plaintiff,
-v-
No. 17-CV-2739 (KMK)
OPINION & ORDER
CORRECTION OFFICER BRUCE TUCKER;
CORRECTION OFFICER CHRISTOPHER KINNE;
CORRECTION OFFICER WILLIAM ELBERT;
NURSE CAROL CHIOCCHI, in their official and
individual capacities,
Defendants.
Appearances:
Christopher Johnson
Alden, NY
Pro Se Plaintiff
Jennifer R. Gashi, Esq.
New York State Office of the Attorney General
White Plains, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiff Christopher Johnson (“Plaintiff”), an incarcerated inmate proceeding pro se,
brings this Action against Correction Officer Bruce Tucker (“Tucker”), Correction Officer
Christopher Kinne (“Kinne”), Correction Officer William Elbert (“Elbert”), and Nurse Carol
Chiocchi (“Chiocchi”) (collectively “Defendants”), pursuant to 42 U.S.C. § 1983. (See Compl.
(Dkt. No. 2).) Plaintiff alleges violations of his Eighth and Fourteenth Amendment rights in
connection with an alleged assault that took place at Sullivan Correctional Facility on April 29,
2014 and the medical care he received thereafter. (See generally id.) Before the Court is
Defendants’ Partial Motion To Dismiss Plaintiff’s claims against Chiocchi for failure to state a
claim. (See Not. of Mot. To Dismiss (Dkt. No. 21).) For the reasons explained herein, the
Motion is granted.
I. Background
A. Factual Background
The following facts are taken from Plaintiff’s Complaint and, for purposes of this
Motion, are assumed true.
From 2013 to 2016, Plaintiff was incarcerated at Sullivan Correctional Facility
(“Sullivan”), and each of the Defendants—including Chiocchi—was employed at Sullivan
during this time period. (See id. at 1–2.)1 In or about April 2013, Tucker told Plaintiff “Blood
in[], so Blood out,” which Plaintiff perceived as a threat that Tucker would harm Plaintiff due to
Tucker’s belief that Plaintiff was a member of the Bloods gang. (Id. at 4.) Plaintiff filed a
grievance for this, as well as Tucker’s spilling of a cup of juice on Plaintiff during the same
month. (See id.)
Roughly one year later, on April 29, 2014, Tucker went to Plaintiff’s cell and told him to
get dressed. (See id.) Tucker returned to Plaintiff’s cell a few minutes later and stated,
“Ass[]hole, when your cell is open, turn right and place your hands high against the wall, and if
you do anything stupid, I’m going to bounce your head off the wall like a basketball.” (Id.
(internal quotation marks omitted).) Plaintiff complied with this order, and Tucker proceeded to
search Plaintiff by “groping [him] by his underwear.” (Id.) Plaintiff complained to Tucker to no
avail and, once the search was complete, Tucker pushed Plaintiff in the back of the head and told
For ease of reference given Plaintiff’s inconsistent use of paragraph numbers in his
Complaint, the Court cites to the page numbers at the bottom of each page of Plaintiff’s
Complaint.
1
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him to go. (See id.) As Plaintiff and Tucker walked to “the Draft area,” Tucker “punch[ed]
[Plaintiff] in the back of his head, and . . . knock[ed] him on the floor.” (Id. at 5.) Tucker then
began choking Plaintiff on the ground, and was then joined by Kinne and Elbert. (See id.)
Kinne and Elbert “repeatedly kicked [P]laintiff in his face,” while Tucker continued to choke
Plaintiff and Correction Officer Thompson (“Thompson”) proceeded to “bend[] . . . Plaintiff’s
feet unnecessarily to inflict unnecessary pain.” (Id.) Eventually, Sergeant Keith responded and
ended the assault for the time being. (See id.) Plaintiff was then handcuffed by Tucker and
Thompson, but was still being “punch[ed] . . . in the back of the head,” before being escorted to
“the Clinic.” (Id.)
On the way to the Clinic, Kinne and Elbert “slammed Plaintiff’s face into [a] glass
window . . . causing Plaintiff to vomit and lose consciousness.” (Id.) Eventually, Plaintiff was
“awaken[ed] by Nurse Chiocchi’s voice in the Facility Hospital, and [e]xamined before [being]
taken to the outside [h]ospital.” (Id.) Chiocchi examined Plaintiff, but “failed to note . . .
Plaintiff’s severe head injury and excruciating pain and suffering.” (Id. at 6.) Thus, according to
Plaintiff, Chiocchi “stat[ed] the incorrect injuries on the medical report.” (Id.) Plaintiff was then
taken by an ambulance to Monticello Hospital, where “he was seen by a [n]urse, who reported
his correct injuries.” (Id.)
B. Procedural History
Plaintiff filed his Complaint on April 14, 2017, (see generally Compl.), and Plaintiff’s
request to proceed in forma pauperis was granted on April 28, 2017, (see Order Granting IFP
Application (Dkt. No. 6)). Simultaneously with his Complaint, Plaintiff filed a Motion for
Appointment of Counsel, (see Dkt. No. 1), which the Court denied without prejudice on May 24,
2017, (see Order (Dkt. No. 9)). Defendants submitted a letter to the Court on October 3, 2017,
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requesting permission to file a partial Motion To Dismiss on behalf of Defendant Chiocchi. (See
Letter from Jennifer Gashi, Esq., to Court (Oct. 3, 2017) (Dkt. No. 19).) On October 17, 2017,
the Court entered an Order that Defendants could file their partial Motion To Dismiss on behalf
of Chiocchi by November 18, 2017, and that Plaintiff should respond to the Motion by
December 18, 2017. (See Mot. Scheduling Order (Dkt. No. 20).)
On November 16, 2017, Defendants filed their Partial Motion To Dismiss on behalf of
Chiocchi. (See Dkt. Nos. 21–22.) Tucker, Kinne, and Elbert did not join in the Motion. (See
id.) Plaintiff did not file any opposition papers. The Court will therefore consider the Motion
fully briefed, but independently consider its merits. See Goldberg v. Danaher, 599 F.3d 181,
183 (2d Cir. 2010) (explaining that district courts should consider the merits of a motion to
dismiss rather than automatically grant the motion if a plaintiff fails to respond).
II. Discussion
A. Standard of Review
Defendant Chiocchi moves to dismiss the Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) as to the claims brought against her. (See Dkt. Nos. 21–22.) The Supreme
Court has held that although a complaint “does not need detailed factual allegations” to survive a
motion to dismiss, “a plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration and
internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “Nor does a complaint
suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (alteration and
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internal quotation marks omitted). Instead, a complaint’s “[f]actual allegations must be enough
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once
a claim has been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint,” id. at 563, and a plaintiff must allege “only enough facts
to state a claim to relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his
or her] claims across the line from conceivable to plausible, the[] complaint must be dismissed,”
id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim
for relief will . . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense. But where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” (citation omitted) (second alteration in
original) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous
departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the
doors of discovery for a plaintiff armed with nothing more than conclusions.”).
In considering Defendants’ partial Motion To Dismiss, the Court is required to “accept as
true all of the factual allegations contained in the [C]omplaint.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same).
And, the Court must “draw[] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M
Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l
PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Moreover, “[i]n adjudicating a Rule 12(b)(6) motion, a
district court must confine its consideration to facts stated on the face of the complaint, in
documents appended to the complaint or incorporated in the complaint by reference, and to
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matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y.,
199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted).
Where, as here, a plaintiff proceeds pro se, the Court must “construe[] [his complaint]
liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of
Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (internal quotation marks omitted).
However, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from
compliance with relevant rules of procedure and substantive law.” Bell v. Jendell, 980 F. Supp.
2d 555, 559 (S.D.N.Y. 2013) (internal quotation marks omitted).
B. Analysis
“The Eighth Amendment forbids ‘deliberate indifference to serious medical needs of
prisoners.’” Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)
(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A convicted prisoner’s claim of deliberate
indifference to his medical needs by those overseeing his care is analyzed under the Eighth
Amendment because it is an allegation that the “conditions of confinement were a form of
punishment” and thus is a “violation of [the] Eighth Amendment right to be free from cruel and
unusual punishments.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). Here, too, the inquiry
proceeds by two steps. “First, the plaintiff must establish that he suffered a sufficiently serious
constitutional deprivation. Second, the plaintiff must demonstrate that the defendant acted with
deliberate indifference.” Feliciano v. Anderson, No. 15-CV-4106, 2017 WL 1189747, at *8
(S.D.N.Y. Mar. 30, 2017).
“The first requirement is objective: the alleged deprivation of adequate medical care must
be sufficiently serious.” Spavone, 719 F.3d at 138 (internal quotation marks omitted).
Analyzing this objective requirement involves two inquiries: “[t]he first inquiry is whether the
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prisoner was actually deprived of adequate medical care,” Salahuddin v. Goord, 467 F.3d 263,
279 (2d Cir. 2006), and the second “asks whether the inadequacy in medical care is sufficiently
serious. This inquiry requires the [C]ourt to examine how the offending conduct is inadequate
and what harm, if any, the inadequacy has caused or will likely cause the prisoner,” id. at 280.
To meet the objective requirement, “the inmate must show that the conditions, either alone or in
combination, pose an unreasonable risk of serious damage to his health.” Walker v. Schult, 717
F.3d 119, 125 (2d Cir. 2013). “There is no settled, precise metric to guide a court in its
estimation of the seriousness of a prisoner’s medical condition.” Brock v. Wright, 315 F.3d 158,
162 (2d Cir. 2003); see also Smith v. Outlaw, No. 15-CV-9961, 2017 WL 4417699, at *2
(S.D.N.Y. Sept. 30, 2017) (same). Nevertheless, the Second Circuit has suggested the following
non-exhaustive list of factors to consider when evaluating an inmate’s medical condition: “(1)
whether a reasonable doctor or patient would perceive the medical need in question as ‘important
and worthy of comment or treatment,’ (2) whether the medical condition significantly affects
daily activities, and (3) ‘the existence of chronic and substantial pain.’” Brock, 315 F.3d at 162
(quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).
“The second requirement is subjective: the charged officials must be subjectively reckless
in their denial of medical care.” Spavone, 719 F.3d at 138. Under the second prong, the
defendant must “appreciate the risk to which a prisoner was subjected,” and have a “subjective
awareness of the harmfulness associated with those conditions to be liable for meting out that
punishment.” Darnell, 849 F.3d at 35; see also Nielsen, 746 F.3d at 63 (“Deliberate indifference
is a mental state equivalent to subjective recklessness. . . . This mental state requires that the
charged official act or fail to act while actually aware of a substantial risk that serious inmate
harm will result.” (internal quotation marks omitted)). In other words, “[i]n medical-treatment
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cases not arising from emergency situations, the official’s state of mind need not reach the level
of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official
acted with deliberate indifference to inmate health.” Nielsen, 746 F.3d at 63 (internal quotation
marks omitted). “[M]ere negligence,” however, is not enough to state a claim for deliberate
indifference. Walker, 717 F.3d at 125 (internal quotation marks omitted); see also Vail v. City of
New York, 68 F. Supp. 3d 412, 424 (S.D.N.Y. 2014) (same). Relatedly, “mere disagreement
over the proper treatment does not create a constitutional claim,” and accordingly, “[s]o long as
the treatment given is adequate, the fact that a prisoner might prefer a different treatment does
not give rise to an Eighth Amendment violation.” Chance, 143 F.3d at 703.
Ultimately, Plaintiff’s allegations are insufficient to state a deliberate indifference claim
against Chiocchi. As alleged, Plaintiff’s medical needs were not ignored. Chiocchi woke
Plaintiff up, asked him if he knew where he was, and examined him—although Plaintiff alleges
Chiocchi “failed to note” his injuries. (Compl. 6.) Plaintiff was then taken from Sullivan to
Monticello Hospital via ambulance and treated for his injuries. (See id.) While Plaintiff may
have disagreed with the diagnosis Chiocchi made during her initial examination, “such
complaints do not rise to the level of an Eighth Amendment violation.” Candelario v. Quality
Choice Corr. Healthcare, No. 16-CV-2083, 2017 WL 3049553, at *4 (S.D.N.Y. July 18, 2017);
see also Chance, 143 F.3d at 703 (“It is well-established that mere disagreement over the proper
treatment does not create a constitutional claim.”); Washington v. Westchester Cty. Dep’t of
Corr., No. 13-CV-5322, 2014 WL 1778410, at *6 (S.D.N.Y. Apr. 25, 2014) (“[I]t is well-settled
that the ultimate decision of whether or not to administer a treatment or medication is a medical
judgment that, without more, does not amount to deliberate indifference.”); Harris v.
Westchester Cty. Med. Ctr., No. 08-CV-1128, 2011 WL 2637429, at *3 (S.D.N.Y. July 6, 2011)
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(“As for misdiagnosis, without more, allegations of negligent treatment and misdiagnosis do not
state a cause of action under the Eighth Amendment.” (alteration and internal quotation marks
omitted)); Harris v. Howard, No. 07-CV-1065, 2009 WL 537550, at *12 (N.D.N.Y. Mar. 3,
2009) (finding claims that a nurse “did not check him for injuries before she went to get the
stretcher,” and “improperly failed to complete an Unusual Incident Report and an Inmate Injury
Report . . . is simply not an Eighth Amendment claim under any view of the facts”); Sonds v. St.
Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 312 (S.D.N.Y. 2001)
(“[D]isagreements over medications, diagnostic techniques (e.g., the need for X-rays), forms of
treatment, or the need for specialists or the timing of their intervention, are not adequate grounds
for a [§] 1983 claim. These issues implicate medical judgments and, at worst, negligence
amounting to medical malpractice, but not [a violation of] the Eighth Amendment.”); Mitchell v.
Keane, 974 F. Supp. 332, 342 (S.D.N.Y. 1997) (“[The defendant’s] failure to fill out an injury
report does not state an Eighth Amendment claim. An injury report is not medically necessary
for a minimally civilized life.”), aff’d, 175 F.3d 1008 (2d Cir. 1999). Plaintiff does not allege
that Chiocchi refused to see or treat him when he was taken to the clinic; he merely complains
that Chiocchi got the diagnosis wrong and failed to note the right diagnosis in her report. Such
complaints do not rise to the level of an Eighth Amendment violation.
At best, Plaintiff may have alleged a claim for medical malpractice if Chiocchi indeed
misdiagnosed his injuries. Such allegations, however, cannot “support an Eighth Amendment
claim unless the malpractice involves culpable recklessness, i.e., an act or a failure to act by the
prison doctor that evinces a conscious disregard of a substantial risk of serious harm.”
Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (internal quotation marks omitted). “In
other words, ‘the charged official [must] act or fail to act while actually aware of a substantial
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risk that serious inmate harm will result.’” Bell, 980 F. Supp. 2d at 561 (alteration in original)
(quoting Salahuddin, 467 F.3d at 280). No such circumstances exist here, as Plaintiff does not
allege that Chiocchi refused to see, examine, or transfer him to an outside hospital to receive
medical care; rather, he only complains that Chiocchi got the diagnosis wrong. That is not a
claim for deliberate indifference, and is “at worst, negligence amounting to medical
malpractice.” Sonds, 151 F. Supp. 2d at 312.
Furthermore, Plaintiff’s Complaint makes clear that he was treated the night of the
assault, as he “awaken[ed] by Nurse Chiocchi . . . , and [e]xamined before [being] taken to the
outside [h]ospital.” (Compl. 5.) To the extent Plaintiff is challenging any delay between the
time that he was examined by Chiocchi and treated at Monticello Hospital, it does not appear
there was any delay in his treatment that night. Still, such a minimal period of time between the
assault and treatment on the same night at Monticello Hospital would be insufficient to state an
Eighth Amendment claim. “While a lengthy, unjustifiable delay in providing necessary medical
treatment may constitute deliberate indifference, that is not at all what happened here.” Waller v.
DuBois, No. 16-CV-6697, 2018 WL 1605079, at *7 (S.D.N.Y. Mar. 29, 2018) (internal
quotation marks omitted). Here, Plaintiff was transferred by Chiocchi to Monticello Hospital
after her initial examination. Such a delay, if it could even be deemed a delay at all, is not
grounds for a deliberate indifference claim. See Feliciano, 2017 WL 1189747, at *11
(“Although a delay in providing necessary medical care may in some cases constitute deliberate
indifference, the Second Circuit has reserved such a classification for cases in which, for
example, officials deliberately delayed care as a form of punishment; ignored a life-threatening
and fast-degenerating condition for three days; or delayed major surgery for over two years.”
(alterations and internal quotation marks omitted)); Robinson v. Clark, No. 15-CV-8434, 2017
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WL 775813, at *8 (S.D.N.Y. Feb. 27, 2017) (holding that a delay in surgery from April 2015 to
December 2015 is insufficient, without more, to support an Eighth Amendment claim); Ferguson
v. Cai, No. 11-CV-6181, 2012 WL 2865474, at *4 (S.D.N.Y. July 12, 2012) (“Where temporary
delays or interruptions in the provision of medical treatment have been found to satisfy the
objective seriousness requirement in [the Second] Circuit, they have involved either a needlessly
prolonged period of delay, or a delay which caused extreme pain or exacerbated a serious
illness.”); Beaman v. Unger, 838 F. Supp. 2d 108, 110 (W.D.N.Y. 2011) (holding that delay in
treatment of wrist and finger fractures due to “the two nurses and [the doctor] misdiagnos[ing]
[the plaintiff’s] injuries, and fail[ing] to recognize the severity of those injuries . . . might
conceivably show malpractice, but they do not state an Eighth Amendment claim.”). The
Complaint makes no mention of any purposeful delay; rather, it indicates that Plaintiff was given
an initial examination by Chiocchi, and then promptly transferred from Sullivan to an outside
medical facility where he received treatment for his injuries. (See Compl. 5–6.)
Ultimately, Plaintiff’s conclusory and inconsistent allegations that Chiocchi
“demonstrated deliberate indifference . . . by her failure to provide him with prompt and proper
medical treatment,” (id.), “have not nudged his claims across the line from conceivable to
plausible,” Candelario, 2017 WL 3049553, at *5; see also Flemming v. Smith, No. 11-CV-804,
2014 WL 3698004, at *6 (N.D.N.Y. July 24, 2014) (“Conclusory allegations that medical staff
defendants were aware of a [prisoner’s] medical needs and failed to provide adequate care are
generally insufficient to state an Eighth Amendment claim of inadequate medical care.”); Gumbs
v. Dynan, No. 11-CV-857, 2012 WL 3705009, at *12 (E.D.N.Y. Aug. 26, 2012) (same).
Accordingly, Plaintiff's claims against Chiocchi are dismissed.
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Ill. Conclusion
For the reasons stated above, Defendants' partial Motion To Dismiss is granted as to
Defendant Chiocchi. This Opinion does not impact Plaintiffs outstanding claims against the
remaining Defendants. Moreover, because this is the first adjudication of Plaintiffs claims on
the merits, the dismissal is without prejudice. If Plaintiff wishes to file an amended complaint,
Plaintiff must do so within 30 days of the date of this Opinion. Plaintiff should include within
that amended complaint any changes to correct the deficiencies identified in this Opinion that
Plaintiff wishes the Court to consider. Plaintiff is advised that the amended complaint will
replace, not supplement, the original complaint. The amended complaint must contain all of the
claims and factual allegations Plaintiff wishes the Court to consider, including those against
Defendants who have not yet filed a Motion To Dismiss. The Court will not consider factual
allegations contained in supplemental letters, declarations, or memoranda. If Plaintiff fails to
abide by the 30-day deadline, his claims against Chiocchi may be dismissed with prejudice and
the Court will proceed with the case against the remaining Defendants.
The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No.
21 ), and to mail a copy of this Opinion & Order to Plaintiffs address on the docket.
SO ORDERED.
DATED:
June (2..., 2018
White Plains, New York
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