Girard v. Collao et al

Filing 92

OPINION AND ORDER re: 79 MOTION to Add. filed by Chauncey Girard, 72 MOTION to Dismiss Pl.'s Third Pleading. filed by Staples, Eckerson, K. Swain, Thomas Griffin, Collao, Murphy, Robert Bentivegna, Helena Korob kova. For the foregoing reasons, Defendants' motion to dismiss is GRANTED and Plaintiff's motion to supplement his complaint and add a party is DENIED. Plaintiff is granted leave to file a Fourth Amended Complaint consistent with this Opin ion on or before April 11, 2022. An Amended Civil Rights Complaint form is attached to this Order. Failure to file a Fourth Amended Complaint within the time allowed, and without good cause to excuse such failure, will result in dismissal of Plaintif f's Third Amended Complaint with prejudice. The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 72 & 79. The Clerk of Court is further respectfully directed to mail a copy of this Opinion & Order to the pro se Plaintiff at the address listed on ECF, and to show proof of service on the docket. SO ORDERED. (Amended Pleadings due by 4/11/2022.) (Signed by Judge Nelson Stephen Roman on 2/9/2022) (kv) Transmission to Docket Assistant Clerk for processing.

Case 7:18-cv-02026-NSR Document 92 Filed 02/09/22 Page 1 of 16

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHAUNCEY GIRARD,
2/9/2022

Plaintiff,
-againstDEP. COLLAO, SUPT. THOMAS GRIFFIN, LT.
MURPHY, C.O. STAPLES, DR. KOROBKOVA,
DR. ROBERT BENTIVEGNA, K. SWAIN
International Steward, and SGT. ECKERSON,

No. 18-CV-2026 (NSR)
OPINION & ORDER

Defendants.
NELSON S. ROMÁN, United States District Judge
Plaintiff Chauncey Girard (“Plaintiff”) brings this pro se action pursuant to 42 U.S.C. § 1983
(“Section 1983”) against two medical professionals, Dr. Robert Bentivegna and Dr. Korobkova,
and six prison personnel, Dep. Collao, Supt. Thomas Griffen, Lt. Murphy, C.O. Staples, K. Swain
International Steward (“Swain”), and Sgt. Eckerson (together, the “Defendants”). Plaintiff alleges
violations of his constitutional rights while incarcerated at Green Haven Correctional Facility
(“Green Haven”). On September 15, 2020, Plaintiff filed a Third Amendment Complaint (the
“TAC”) (ECF No. 68), which is the operative complaint in this action. Before the Court is
Defendants’ motion to dismiss the TAC (ECF No. 72), and Plaintiff’s motion to supplement his
complaint to add a new party (ECF No. 79.) For the following reasons, Defendants’ motion is
GRANTED, and Plaintiff’s motion is DENIED.
BACKGROUND
The following facts are taken from the TAC and Plaintiff’s opposition papers as well as the
documents attached thereto 1, and are construed in the light most favorable to Plaintiff, the nonThe Court construes Plaintiff’s opposition as supplementing the complaint. “While a court generally ‘may
not look outside the pleadings when reviewing a Rule 12(b)(6) motion to dismiss . . . the mandate to read the papers
1

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movant, and accepted as true for purposes of this motion.
The conduct that forms the basis of the TAC occurred at Green Haven from approximately
December 14, 2017 through January 13, 2018. (TAC at 4.) Plaintiff has H. Pylori disease and
injured his left shoulder, stomach, and back on December 23, 2014, before he arrived at Green
Haven. (Id.) A doctor diagnosed Plaintiff as having a muscular skeletal injury as well as a
dislocation that needed surgery, which occurred on February 23, 2017. (Id.)
On January 7, 2016, Plaintiff wrote Defendant Bentivegna a letter about his shoulder issue
and provided him a copy of his “permit.” (Motion Reply (“Opp.”), ECF No. 77 at 10.) Defendant
Bentivegna replied on January 10, 2017, noting that Plaintiff was due to have surgery at the end of
the month, and any restrictions on the use of his shoulder would have to be determined by his
doctors after the procedure. (Id.)
After his surgery, Plaintiff alleges that Defendant Korobkova failed to provide him with a
medical permit that would exempt him from wall searches. (TAC at 4.) Wall searches involve
officers putting Plaintiff on the wall, which he alleges permanently damaged his shoulder by
reducing its range of motion. (Id.) On April 24, 2017 and December 27, 2017, Plaintiff submitted
grievances requesting treatment for his shoulder and a “permit.” (Opp. at 11-12.)
On February 13, 2018, Plaintiff filed a grievance requesting treatment for a stomach injury
and asking for a change in provider. (Id. at 13.) On February 26, 2018, Plaintiff was rushed to the
infirmary after he could not breathe but was not provided treatment. (Id. at 14.)
On August 1, 2018, Plaintiff received medical care after an altercation which left him with
blood in his urine, hemoptysis, and a swollen eye. (TAC at Ex. A.) Plaintiff alleges the hemoptysis

of pro se litigants generously makes it appropriate to consider plaintiff’s additional materials . . . .’” Brown v. New
York City Hous. Auth., No. 05-CV-10332(VM), 2006 WL 1378599, at *1 n.2 (S.D.N.Y. May 17, 2006) (quoting
Burgess v. Goord, No. 98-CV-2077(SAS), 1999 WL 33458, at *1 (S.D.N.Y. Jan. 26, 1999)).

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causes him to spit up blood, and that he also has a possible lacerated kidney which causes
him “extreme pain.” (Id. at 4.) He has brought these issues to Defendant Korobkova, but she
would state he had nothing wrong with him without doing an assessment. (Id.)
Plaintiff was given an X-ray of his back that showed muscle spasms, mild disc degeneration
disease, and mild anterior osteophytes. (Id. at 5-6.) Plaintiff alleges “Defendant” knew of this
injury, but that he was not given a back brace and was not provided treatment. (Id. at 6.) Plaintiff
also alleges his H. Pylori was not treated and that he was given the wrong medication which made
his condition worse. (Id.) Plaintiff claims he told Defendants Collao and Griffin about his stomach
injury and the bleeding. (Id.)
On December 14, 2017, Plaintiff claims he was unlawfully confined. (Id.) Plaintiff
provides a cell frisk/contraband receipt that shows that Defendant Staples conducted a search, and
a pair of sneakers were confiscated. (Id. at Ex. C.) He claims this was made up to falsely confine
him, and Defendant Murphy made “false judgment for 30 days” where Plaintiff was denied sick
calls and medical attention. (Id. at 6.) When he tried to bring this to Defendant Eckerson’s
attention, he would lie and say he would have the claim investigated.

(Id.)

Defendant

Bentivegna also knew of Plaintiff’s injuries and failed to provide him an “escort,” which made
his injuries worse. (Id.)
Plaintiff claims that he is suffering from permanent left shoulder damage that needs
surgery, and stomach pain that causes discomfort and anguish. (Id. at 5.) He has not slept on his
shoulder in five years, he has blood in his urine and continues to spit up blood. (Id.) His back
needs surgery, and it shakes from a pinched nerve. (Id.) Lastly, Plaintiff alleges the mail room
was shut down when he tried to “receive punitive damages” and Defendant Swain would not
allow certified mail to go out on time. (Id. at 6.)

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Plaintiff filed suit on March 6, 2018. (ECF No. 1.) Plaintiff filed an amended complaint
on June 22, 2018. (ECF No. 7.) On September 4, 2019, the Court issued an Opinion and Order
denying Plaintiff’s motion to supplement his complaint and add a party, and for a preliminary
injunction. (ECF No. 41.) The Court granted Plaintiff leave to file a second amended complaint
which was filed on September 17, 2019. (ECF No. 42.) On January 6, 2020, Defendants filed a
motion to dismiss the second amended complaint. (ECF No. 50.) On August 13, 2020, the Court
issued an Opinion and Order granting Defendants’ motion, and granting Plaintiff leave to file a
third amended complaint. (ECF No. 66.) Plaintiff filed a third amended complaint on September
15, 2020. (ECF No. 68.) Defendants filed a motion to dismiss the third amended complaint on
March 29, 2021. (ECF No. 72.) Plaintiff filed an opposition on April 16, 2021. (ECF No. 77.)
Defendants filed their reply memorandum on May 10, 2021. (ECF No. 84.) 2
Plaintiff also filed a second motion to supplement his complaint and add a party pursuant
to Rule 15(d) on April 19, 2021. (ECF No. 79.) The motion alleges the same facts previously
alleged by Plaintiff in his prior motion to supplement his complaint and add a party. (ECF No.
28.) Specifically, Plaintiff requests twelve additional defendants be added to the action after they
physically and sexually assaulted him after he requested an “Emergency Sick Call,” and allegedly
violated due process during a disciplinary hearing after this incident.
LEGAL STANDARD

Plaintiff also filed two additional documents in opposition. (ECF Nos. 86 & 87.) The filing of a sur-reply
was not authorized by this Court when it issued its Memorandum Endorsement dated December 4, 2020 that
established the operative briefing schedule. (ECF No. 70.) Pursuant to that Endorsement, Plaintiff was authorized to
submit a single opposition brief on or before February 26, 2021. If Plaintiff desired additional papers, he could have
sought leave from the Court. Accordingly, Plaintiff's sur-reply papers were not authorized, the Court strikes them,
and will not consider them in resolving the instant motion.
2

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I.

Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(6), dismissal is proper unless 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 Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). When there are well-pled factual allegations in the complaint, “a court
should assume their veracity and then determine whether they plausibly give rise to an entitlement
to relief.” Id. at 679. The critical inquiry is whether the plaintiff has pled sufficient facts to nudge
the claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 555. A motion
to dismiss will be denied where the allegations “allow[] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Where a pro se plaintiff is concerned, courts must construe the pleadings in a particularly
liberal fashion. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Further, courts must interpret a
pro se plaintiff’s pleadings “to raise the strongest arguments that they suggest.” Harris v. City of
New York, 607 F.3d 18, 24 (2d Cir. 2010) (internal citation omitted). Nevertheless, a pro se
plaintiff’s pleadings must contain factual allegations that sufficiently “raise a right to relief above
the speculative level,” Jackson v. N.Y.S. Dep’t of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y.
2010), and the court’s duty to construe the complaint liberally is not “the equivalent of a duty to
re-write it,” Geldzahler v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009).
II.

Motion to Supplement Complaint and Add Parties
Under Rule 15(d), a party may “serve a supplemental pleading setting out any transaction,

occurrence, or event that happened after the date of the pleading to be supplemented.” Fed. R. Civ.
P. 15(d). Any supplemental facts contained in a supplemental pleading must be “connected to the
original pleading.” Kleeberg v. Eber, 331 F.R.D. 302, 315 (S.D.N.Y. 2019); see also Albrecht v.
Long Island R.R., 134 F.R.D. 40, 41 (E.D.N.Y. 1991) (“A supplemental pleading is designed to
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cover matters that occur subsequent to the filing of the complaint, but pertain to the original
pleadings.”). When there is no “nexus between the events alleged in [the] original complaint and
those alleged in [the] proposed supplemental complaint,” or if the new events did not arise “out of
the same conduct or occurrence as those in the original pleading,” leave to supplement a complaint
will be properly denied. Klos v. Haskell, 835 F. Supp. 710, 716 (W.D.N.Y. 1993).
DISCUSSION
I.

The Third Amended Complaint
The TAC includes the same factual allegations as Plaintiff’s previous complaints. Plaintiff

is realleging his claims for deliberate indifference to medial needs, First Amendment retaliation,
mishandling of inmate grievances, denial of access to the courts, and false imprisonment. (See
TAC at 4-6.) The Court already ruled in its previous Opinion and Order (ECF No. 66) that none
of these allegations sufficiently allege plausible claims for relief, and sees no reason to alter that
conclusion as Plaintiff’s allegations are substantively identical. 3 While Plaintiff attaches several
new documents to his filings, none alter the Court’s previous determinations.
First, in support of his deliberate indifference to medical needs claims, Plaintiff has
submitted (i) December 23, 2014 ambulatory health record progress notes that state Plaintiff was
in an altercation with another inmate and had a skeletal injury to his left arm (Opp. at 19); (ii) April
2015 ambulatory health record progress notes that show he complained of right wrist and left

The only new allegations appear to be that an unnamed Defendant failed to provide Plaintiff with a back
brace and gave him the wrong medication. (TAC at 7.) These claims are insufficient as Plaintiff fails to state which
Defendants he is describing. In addition, the refusal to provide a back brace appears to be a “difference of opinion
between a prisoner and his doctors regarding . . . ‘forms of treatment’” which is not an “’adequate ground[] for a
Section 1983 claim.’” Johnson v. Wright, 234 F. Supp. 2d 352, 361 (S.D.N.Y 2002) (quoting Sonds v. St. Barnabas
Hosp. Corr. Health Serv., 151 F. Supp. 2d 303, 312 (S.D.N.Y. 2001)). Further, providing the wrong medication on
one occasion appears to be no more than negligent conduct, as opposed to the criminal recklessness required by
deliberate indifference. Vail v. City of New York, 68 F. Supp. 3d 412, 425 (S.D.N.Y. 2014) (dismissing deliberate
indifference claim where the defendants allegedly administered the wrong medication as they “[a]t most . . . acted
negligently”).
3

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shoulder injuries and muscular pain in the right side of his abdomen (id. at 20); (iii) a November
17, 2015 interdepartmental communication from Great Meadow Correctional Facility that states
he could not lift his left arm above shoulder height or climb stairs until February 16, 2016 (id. at
9); (iv) a January 10, 2017 memorandum from Defendant Bentivegna that states he received a letter
from Plaintiff regarding his shoulder that attached a permit, and that Plaintiff was having surgery
on his shoulder at the end of the month (id. at 10); (v) an April 24, 2017 inmate grievance that
requests treatment of his left shoulder and a permit (id. at 12); and (vi) a Putnam Hospital Center
emergency documentation dated August 1, 2018 that states Plaintiff was involved in an altercation
the day before and now had blood in his urine, hemoptysis, and a swollen eye (id. at 18).
In its previous Opinion and Order, this Court held that Plaintiff failed to adequately allege
that any Defendant acted with deliberate indifference. The additional documents do not cure the
deficiencies in Plaintiff’s claims.

The first three documents are from before Plaintiff was

transferred to Green Haven, and before he was put in the care of Defendants. The Bentivegna
memorandum shows that Plaintiff did receive treatment for his shoulder, and provides no reason
for the Court to believe Bentivegna was aware of any mistreatment or issues involving Plaintiff’s
care. Similar to other grievance forms Plaintiff has submitted, the April 24, 2017 grievance does
not provide any additional information not already included in the TAC. There is no indication
who received this grievance, whether an investigation was done, and what, if anything, happened
once the grievance resolution committee reviewed it.

Lastly, the Putnam Hospital Center

documentation shows that Plaintiff received his hemoptysis and blood in his urine after an
altercation and received medical treatment the next day. This record also fails to provide any
indication that Plaintiff was mistreated, or that any Defendants acted with deliberate indifference.
Second, Plaintiff also attaches a December 14, 2017 cell frisk/contraband receipt form from
Green Haven that shows a pair of sneakers were confiscated from his cell by Defendant Staples.
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(Id. at 16.) Plaintiff appears to be alleging this form was falsified so that Defendants Staples and
Murphy could retaliate against him and falsely confine him. However, as discussed in this Court’s
previous Opinion and Order, Plaintiff’s allegations fail to establish a causal connection between
his grievances and Defendants’ alleged retaliatory conduct, and therefore fail to establish that he
was imprisoned for no legitimate reason. This document does not cure that deficiency.
Therefore, Defendants’ motion to dismiss the TAC is granted.
II.

Leave to Amend
Generally, pro se plaintiffs are allowed an opportunity to amend their complaint before the

Court will dismiss it with prejudice. Owens v. N.Y.C. Dep’t of Sanitation, No. 11-CV-8297(ALC),
2013 WL 150245, at *3 (S.D.N.Y. Jan. 15, 2013) (“[A] court should grant leave to amend [to a pro
se litigant] at least once before dismissing [a complaint] with prejudice”); Breer v. Maranville, No.
12-CV-0053, 2012 WL 6597707, at *3 (D. Vt. Nov. 27, 2012) (“The Second Circuit has cautioned
that district courts should not dismiss pro se complaints with prejudice without granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a valid claim
might be stated.”) (internal quotation marks omitted). Though this Court has already afforded
Plaintiff more than one opportunity to amend his complaint, the Court will grant Plaintiff one more
chance. The Court emphasizes that, to the extent that Plaintiff elects to file a Fourth (and final)
Amended Complaint, he should bear in mind that the Fourth Amended Complaint will replace not
supplement his previous complaints so any claims, facts, or attachments that Plaintiff wishes the
Court to consider going forward must be within or attached to the Fourth Amended Complaint.
This means that his previous complaints and other filings will no longer be the operative documents
containing his pleadings and exhibits—everything that is essential must be contained in or attached
to the Fourth Amended Complaint.

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Separately, the Court advises Plaintiff that he should strive towards producing an
accessible, concise, and simple statement of his claims. At this point in the litigation, Plaintiff is
not required to provide evidence to prove his claims, instead he should focus on including factual
allegations in the complaint that allege plausible claims for relief. Recognizing the apparent
challenges Plaintiff has faced collecting his exhibits and providing them all in one single filing, the
Court will afford Plaintiff a longer than usual deadline (60 days) to file his Fourth Amended
Complaint.
III.

Motion to Supplement Complaint and Add Parties
Plaintiff also refiled his motion to add a party pursuant to Rule 15(d). (ECF No. 79.) As

the Court’s September 4, 2019 Opinion and Order held, the new allegations Plaintiff seeks to
include in a supplemental complaint bear no relationship to his original claims, and therefore they
are not adequately related to the allegations in the TAC. (ECF No. 41.) Therefore, Plaintiff’s
motion is again denied.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED and Plaintiff’s
motion to supplement his complaint and add a party is DENIED. Plaintiff is granted leave to file
a Fourth Amended Complaint consistent with this Opinion on or before April 11, 2022. An
Amended Civil Rights Complaint form is attached to this Order. Failure to file a Fourth Amended
Complaint within the time allowed, and without good cause to excuse such failure, will result in
dismissal of Plaintiff's Third Amended Complaint with prejudice.

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The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 72 & 79.
The Clerk of Court is further respectfully directed to mail a copy of this Opinion & Order to the
pro se Plaintiff at the address listed on ECF, and to show proof of service on the docket.
Dated:

February 9, 2022
White Plains, New York

SO ORDERED:

________________________________
NELSON S. ROMÁN
United States District Judge

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U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK

_____CV_______________
(Include case number if one has been
assigned)

Write the full name of each plaintiff.

AMENDED

-against-

COMPLAINT
(Prisoner)
Do you want a jury trial?
☐ Yes
☐ No

Write the full name of each defendant. If you cannot fit the
names of all of the defendants in the space provided, please
write “see attached” in the space above and attach an
additional sheet of paper with the full list of names. The
names listed above must be identical to those contained in
Section IV.

NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed
with the court should therefore not contain: an individual’s full social security number or full
birth date; the full name of a person known to be a minor; or a complete financial account
number. A filing may include only: the last four digits of a social security number; the year of
an individual’s birth; a minor’s initials; and the last four digits of a financial account number.
See Federal Rule of Civil Procedure 5.2.

Rev. 5/20/16

Case 7:18-cv-02026-NSR Document 92 Filed 02/09/22 Page 12 of 16

I.

LEGAL BASIS FOR CLAIM

State below the federal legal basis for your claim, if known. This form is designed primarily for
prisoners challenging the constitutionality of their conditions of confinement; those claims are
often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or in a
“Bivens” action (against federal defendants).

☐ Violation of my federal constitutional rights
☐ Other:
II.

PLAINTIFF INFORMATION

Each plaintiff must provide the following information. Attach additional pages if necessary.

First Name

Middle Initial

Last Name

State any other names (or different forms of your name) you have ever used, including any name
you have used in previously filing a lawsuit.
Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency
and the ID number (such as your DIN or NYSID) under which you were held)
Current Place of Detention
Institutional Address

County, City

III.

State

Zip Code

PRISONER STATUS

Indicate below whether you are a prisoner or other confined person:

☐
☐
☐
☐
☐

Pretrial detainee
Civilly committed detainee
Immigration detainee
Convicted and sentenced prisoner
Other:

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Case 7:18-cv-02026-NSR Document 92 Filed 02/09/22 Page 13 of 16

IV.

DEFENDANT INFORMATION

To the best of your ability, provide the following information for each defendant. If the correct
information is not provided, it could delay or prevent service of the complaint on the defendant.
Make sure that the defendants listed below are identical to those listed in the caption. Attach
additional pages as necessary.
Defendant 1:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

Defendant 2:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

Defendant 3:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

Defendant 4:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code
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Case 7:18-cv-02026-NSR Document 92 Filed 02/09/22 Page 14 of 16

V.

STATEMENT OF CLAIM

Place(s) of occurrence:

Date(s) of occurrence:
FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were
harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach
additional pages as necessary.

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INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical treatment,
if any, you required and received.

VI.

RELIEF

State briefly what money damages or other relief you want the court to order.

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Case 7:18-cv-02026-NSR Document 92 Filed 02/09/22 Page 16 of 16

VII.

PLAINTIFF’S CERTIFICATION AND WARNINGS

By signing below, I certify to the best of my knowledge, information, and belief that: (1) the
complaint is not being presented for an improper purpose (such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law
or by a nonfrivolous argument to change existing law; (3) the factual contentions have
evidentiary support or, if specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise
complies with the requirements of Federal Rule of Civil Procedure 11.
I understand that if I file three or more cases while I am a prisoner that are dismissed as
frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in
future cases.
I also understand that prisoners must exhaust administrative procedures before filing an action
in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be
dismissed if I have not exhausted administrative remedies as required.
I agree to provide the Clerk's Office with any changes to my address. I understand that my
failure to keep a current address on file with the Clerk's Office may result in the dismissal of my
case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated
First Name

Plaintiff’s Signature
Middle Initial

Last Name

Prison Address
County, City

State

Zip Code

Date on which I am delivering this complaint to prison authorities for mailing:

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