Robinson v. Lynn et al
Filing
96
MEMORANDUM OPINION AND ORDER re: 93 MOTION to Dismiss Amended Complaint. filed by Janice Lynn Wolf Freidman, Carl Koenisgsmann, Robert Bentivegna, Kyoung Kim, Ahkand, K. Ott, Frederick N. Bernstein. For the foregoing reasons, t he Court GRANTS Defendants motion to dismiss. While "[d]istrict courts should frequently provide leave to amend before dismissing a pro se complaint... leave to amend is not necessary when it would be futile." Reed v. Friedman Mgt. Corp., 541 F. Appx 40, 41 (2d Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). Here, the Court dismisses Plaintiff's Complaint with prejudice as any amendment would be futile and Plaintiff has already had an opportunity to am end his pleadings. The Court directs the Clerk to terminate the pending motion (Doc. 93) and terminate this action. The Court further directs the Clerk to mail a copy of this Memorandum Opinion and Order to Plaintiff at the address provided on the docket. (As further set forth in this Order.) (Signed by Judge Philip M. Halpern on 2/5/2021) (cf) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
JAMES ROBINSON,
MEMORANDUM OPINION
AND ORDER
Plaintiff,
v.
18-CV-02409 (PMH)
JANICE LYNN WOLF-FRIEDMAN, et al.,
Defendants.
---------------------------------------------------------X
PHILIP M. HALPERN, United States District Judge:
Plaintiff James Robinson (“Plaintiff”), presently incarcerated at the Auburn Correctional
Facility, and proceeding pro se and in forma pauperis, commenced this action with the filing of a
Complaint on March 16, 2018. (Doc. 2, “Compl.”). Plaintiff asserted, under 42 U.S.C. § 1983,
Eighth Amendment deliberate indifference to medical needs claims against Dr. Janice Lynn
Wolf-Friedman (“Dr. Wolf-Friedman”), Dr. Kyoung Kim (“Dr. Kim”), Dr. Akhand1 (“Dr.
Akhand”), Dr. K. Ott (“Dr. Ott”), Robert Bentivegna (“Bentivegna”), Carl Koenigsmann
(“Koenigsmann”), and Frederick N. Bernstein (“Bernstein” and collectively “Defendants”) for
treatment Plaintiff received at either the Green Haven Correctional Facility (“Green Haven”) or
the Elmira Correctional Facility (“Elmira”).
Defendants moved to dismiss Plaintiff’s Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6), and, in an Opinion and Order dated September 24, 2019 (the “Prior Order”),
Judge Karas, who presided over this case before it was reassigned to me on April 16, 2020,
granted Defendants’ motion. (Doc. 82, “Op. & Order” at 16). Judge Karas also granted Plaintiff
leave to file an amended complaint. (Id.). As to the claims accruing at Green Haven, Judge Karas
While Plaintiff names as a Defendant Dr. “Ahkand,” the correct spelling is Dr. “Akhand.” Thus, the
Court uses “Dr. Akhand” throughout.
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directed Plaintiff to “correct the deficiencies identified in this Opinion.” (Id.). As to the claims
accruing at Elmira, Judge Karas instructed Plaintiff that he “may reinstitute suit once he can
show that he has administratively exhausted all remedies.” (Id.).
Plaintiff filed a First Amended Complaint (“FAC”) on November 12, 2019.2 (Doc. 85,
“FAC”). The FAC names the same seven Defendants and again alleges Eighth Amendment
deliberate indifference to medical needs claims. By motion dated May 15, 2020, Defendants
moved to dismiss the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 93; Doc.
94, “Defs. Br.”). Defendants’ motion is unopposed.3
For the reasons set forth below, Defendants’ motion is GRANTED.
BACKGROUND
The facts, as recited below, are taken from Plaintiff’s FAC, which is difficult to follow,
and the exhibits attached to Plaintiff’s original Complaint.4 In May 2010, while incarcerated at
2
The caption of the FAC indicates that it is filed in case number 19-CV-10418. A review of the publicly
available docket for 19-CV-10418 shows that the FAC was incorrectly assigned a new case number and
was thereafter filed in this action. See Robinson v. Freidman, No. 19-CV-10418 (Doc. 2).
Plaintiff’s brief in opposition to Defendants’ motion was due June 17, 2020. (Doc. 92). The docket
reflects that Plaintiff was mailed a copy of the Order setting forth the briefing schedule for Defendants’
motion (Mar. 19, 2020 Entry) as well as a copy of Defendants’ motion (Doc. 93 at 2). By Order dated
July 28, 2020, the Court sua sponte extended Plaintiff’s time to file a brief in opposition to Defendants’
motion. (Doc. 95). The July 28 Order directed Defendants to “mail a copy of this Order to Plaintiff and
provide proof of service on the docket.” (Id.). No proof of service appears on the docket and the Court is
unable to determine whether Plaintiff received a copy of the Court’s July 28 Order. Nonetheless, because
Plaintiff has failed to oppose Defendants’ motion for more than seven months, and has not communicated
with the Court in any way since February 4, 2020 (Doc. 89), the Court will deem the motion fully
submitted and adjudicate it at this time.
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4
After Plaintiff filed the FAC, Defendants notified the Court that while the FAC repeatedly referred to
exhibits, no exhibits were attached thereto. (Doc. 86). Judge Karas directed Plaintiff to file the exhibits
referenced in the FAC. (Doc. 87). When Plaintiff did not file the exhibits, Judge Karas issued an Order to
Show Cause directing Plaintiff to show cause why the action should not be dismissed for failure to
prosecute. (Doc. 88). Plaintiff responded to the show cause order and indicated that the exhibits cited to in
the FAC were references to the exhibits submitted in support of Plaintiff’s original Complaint. (Doc. 89).
Judge Karas then informed Defendants that they should refer to the exhibits attached to the original
Complaint when answering or moving to dismiss the FAC. (Doc. 90). Therefore, on the present motion,
the Court considers the exhibits submitted in support of Plaintiff’s original Complaint. See Leonard F. v.
2
Green Haven, Plaintiff first complained about lower back pain and got an x-ray. (FAC ¶ 1; Exs.
at 2-3).5 In March 2013, Plaintiff got a second x-ray and physical therapy. (FAC ¶ 2). After filing
numerous sick call requests related to his back pain, in October 2014, Plaintiff got an MRI. (Id.).
The notes from the MRI indicate that Plaintiff reported having “non-radiating back pain” and the
MRI revealed “mild loss of disc space height” and “mild . . . disc bulging” on the left side of
Plaintiff’s back. (Exs. at 6).
At some time thereafter, Plaintiff’s provider was changed to Dr. Wolf-Friedman and
Plaintiff went through a second regimen of physical therapy. (FAC ¶ 3). Plaintiff’s condition
allegedly worsened, and he received a back brace. (Id.). Plaintiff requested that he be seen by an
orthopedic doctor because, contrary to the MRI’s findings, the right side of his back was causing
pain rather than the left side, and he was “experiencing discomfort standing, sleeping, resting,
sitting, and walking which was effecting [sic] his daily activities.” (Id.). On August 30, 2016,
Plaintiff was examined by an orthopedic doctor at the Putnam Health Center and a second MRI
was performed. (Id. ¶ 4; Exs. at 14). The orthopedic doctor noted “mild disc bulges,” and,
according to Plaintiff, the doctor determined that Plaintiff had “right foot drop.” (FAC ¶ 4).
Plaintiff’s provider then changed to Dr. Akhand, and Plaintiff discussed with Dr. Akhand
his lower back pain. (Id.). Dr. Akhand allegedly told Plaintiff that back injections would not help
his pain and recommended that Plaintiff have surgery. (Id.). On September 21, 2016, Plaintiff
was examined by a second orthopedic doctor. (Id. ¶ 5; Exs. at 17-19). Plaintiff reported having
“right foot drop” and “tingling in the right foot.” (Exs. at 17). The doctor notes indicate that
Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (noting that a district court may consider
“documents appended to the complaint or incorporated in the complaint by reference” (citation omitted));
(see also Doc. 2-1, “Exs.”).
5
When citing to paragraphs in the FAC, the Court refers to the numbered paragraphs that begin on page
10. When citing to the Exhibits filed in support of Plaintiff’s original Complaint, the Court refers to the
pagination generated by ECF.
3
Plaintiff was diagnosed with “right L5 radiculopathy” and that the doctor’s “findings correlate
with the patient’s symptoms.” (Id. ¶ 5; Exs. at 19). Plaintiff had a third regimen of physical
therapy and was issued a foot brace. (FAC ¶ 6). Thereafter, Plaintiff’s provider changed a third
time, to Dr. Kim. (Id.).
Plaintiff avers that the treatment he was provided by Dr. Wolf-Freidman, Dr. Akhand,
and Dr. Kim at Green Haven was insufficient and that he wrote numerous letters to Bentivegna,
Koenigsmann, and Bernstein regarding the allegedly inadequate treatment. (Id. ¶ 7). Specifically,
Plaintiff claims that the failure to refer him to get surgery or see a specialist was a violation of
his Eighth Amendment rights. (Id.).
On October 21, 2017, Plaintiff was transferred to Elmira and requested sick-call due to
the “chronic pain in his hips, back, leg, foot, [and] toes on his right side” (Id. ¶ 8). Plaintiff also
“request[ed] his eye drops . . . [and] his back brace and foot brace.” (Id.). On November 21,
2017, Plaintiff was examined by Dr. Ott who informed Plaintiff that he “would have to give up
his back brace and would no longer receive[] his pain medication.” (Id. ¶¶ 8-10). After filing
multiple grievances, Plaintiff was examined by an orthopedic doctor who allegedly again
recommended surgery. (Id. ¶¶ 11-12). After this recommendation, Plaintiff avers that he was
“schedule[d] and re-schedule[d] to see a different orthopedic doctor.” (Id. ¶ 12). Plaintiff alleges
that Dr. Ott ignored the recommendation that Plaintiff get surgery and denied him adequate
medical treatment. (Id. ¶ 13).
Plaintiff claims that on an unidentified date after “the court issued a[n] order for
[plaintiff] to have surgery” he did have surgery and Plaintiff no longer has “chronic pain . . . but
still ha[s] a swollen foot [and] toes.” (Id. ¶ 14). According to Plaintiff it took Defendants too
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long to understand that the pain Plaintiff was experiencing was on his right side, not his left side.
(Id.).
STANDARD OF REVIEW
On a Rule 12(b)(6) motion, the court may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a
complaint must contain 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)). A claim is plausible on its face “when the ple[d] factual
content allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant acted
unlawfully.” Id. The factual allegations pled “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
“When there are well-ple[d] factual allegations [in the complaint], a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679. Thus, the court must “take all well-ple[d] factual allegations as true, and
all reasonable inferences are drawn and viewed in a light most favorable to the plaintiff.” Leeds
v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). However, the presumption of truth does not extend to
“legal conclusions, and threadbare recitals of the elements of the cause of actions.” Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. 662). Therefore, a plaintiff must
provide “more than labels and conclusions” to show entitlement to relief. Twombly, 550 U.S. at
555.
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A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to
less stringent standards than formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S.
97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (internal quotation
marks omitted)). Because pro se plaintiffs are often unfamiliar with the formalities of pleading
requirements, courts must apply a more flexible standard in determining the sufficiency of a pro
se complaint than they would in reviewing the complaint of an individual represented by
counsel. Smith v. U.S. Dep’t of Just., 218 F. Supp. 2d 357 (W.D.N.Y. 2002). While “[p]ro
se complaints are held to less stringent standards than those drafted by lawyers, even following
Twombly and Iqbal . . . dismissal of a pro se complaint is nevertheless appropriate where a
plaintiff has clearly failed to meet minimum pleading requirements.” Thomas v. Westchester
Cty., No. 12-CV-6718, 2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013) (internal citations
omitted); see also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro se case,
[] ‘although a court must accept as true all of the allegations contained in a complaint, that tenet
is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.’” (quoting Harris v. Mills, 572 F.3d 66,
72 (2d Cir.2009))).
When deciding an unopposed motion to dismiss, as is the case here, “the Court is to
‘assume the truth of a pleading’s factual allegations and test only its legal sufficiency. Thus,
although a party is of course to be given a reasonable opportunity to respond to an opponent’s
motion, the sufficiency of a complaint is a matter of law that the court is capable of determining
based on its own reading of the pleading and knowledge of the law.’” Law v. Corizon Med.
Servs., No. 13-CV-5286, 2014 WL 2111675, at *3 (S.D.N.Y. May 12, 2014) (quoting McCall v.
Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000)). Therefore, it is appropriate for the Court to test the
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legal sufficiency of Plaintiff’s FAC even without the benefit of a brief in opposition to
Defendants’ motion from Plaintiff.
ANALYSIS
Plaintiff asserts claims under 42 U.S.C. § 1983 for (1) deliberate indifference to medical
needs in violation of his Eighth Amendment against Dr. Wolf-Friedman, Dr. Akhand, Dr. Kim,
and Dr. Ott, and (2) supervisor liability against Bentivega, Bernstein, and Koenigsmann. Judge
Karas found, in the Prior Order, that these same claims asserted against the same Defendants
were deficient for various reasons. In light of those findings, and assuming familiarity thereof,
the Court’s analysis herein is limited to whether the FAC cures the deficiencies identified in the
Prior Order.
I.
PLRA Exhaustion
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought
with respect to prison conditions under [§] 1983 of this title, 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). Judge Karas found that
Plaintiff’s claims related to conduct at Elmira should be dismissed because it was “‘clear on the
face of the Complaint’ that Plaintiff failed to exhaust his administrative remedies as to his
allegations pertaining to medical care at Elmira before filing his Complaint.” (Op. & Order at 9
(quoting Brinson v. Kirby Forensic Psych. Ctr., No. 16-CV-1625, 2018 WL 4680021, at *6
(S.D.N.Y. Sept. 28, 2018))). Specifically, the Court noted that Plaintiff alleged that the
grievances he filed related to the medical care he received at Elmira were still “pending” and
thus the administrative remedy process had not run its course. (Id. (citing Compl. at 11)). The
Court noted further, “that Plaintiff made no allegations suggesting that the circumstances call for
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any exception to [PLRA] exhaustion” requirements. (Id. at 9, n.4). Plaintiff was instructed, as to
any claims related to the medical care he received at Elmira, that he “may reinstitute suit once he
can show that he has administratively exhausted all remedies.” (Id. at 16).
The FAC does not allege that Plaintiff has exhausted his administrative remedies and
does not identify any reasons why the Court should make an exception to the PLRA’s exhaustion
requirements. (FAC at 17). Since Plaintiff’s claims regarding the inadequate medical care he
received at Elmira relate to Dr. Ott only, the Court finds that Plaintiff’s claims against Dr. Ott are
barred for failure to exhaust administrative remedies and hereby dismisses Plaintiff’s claim
against Dr. Ott.6
II.
Eighth Amendment Violation
Judge Karas held that Plaintiff had failed to state an Eighth Amendment claim for
deliberate indifference to his medical needs related to the treatment he received at Green Haven
because Plaintiff’s allegations were insufficient to satisfy the objective prong of an Eighth
Amendment claim. Specifically, Judge Karas held:
It is undisputed that Plaintiff received some form of medical care
while at Green Haven. The Complaint indicates that Plaintiff
received medication, physical braces, MRIs and other
examinations, and multiple appointments with specialists. (See
Compl. ¶¶ 1-7.) Accordingly, the proper inquiry is whether
Plaintiff received adequate care, which requires the Court “to
examine how the offending conduct is inadequate and what harm,
if any, the inadequacy has caused or will likely cause the prisoner.”
Lloyd v. Lee, 570 F. Supp. 2d 556, 566 (S.D.N.Y. 2008) (quoting
Salahuddin, 467 F.3d at 280). Plaintiff has failed to show that the
treatment he received at Green Haven was so inadequate that it
“pose[d] an unreasonable risk of serious damage to his health.”
6
The FAC asserts that Dr. Akhand provided medical care to Plaintiff at Green Haven, not at Elmira.
(FAC at 17). Defendants do not dispute that Dr. Akhand is employed at Green Haven and provided
medical care to Plaintiff at Green Haven. Furthermore, both the Complaint and FAC indicate that Dr.
Akhand was employed at Green Haven. (Compl. at 9; FAC at 1). Accordingly, claims against Dr. Akhand
will be considered infra.
8
Kucharczyk v. Westchester County, 95 F. Supp. 3d 529, 537
(S.D.N.Y. 2015) (quoting Walker, 717 F.3d at 125).
(Op. & Order at 13 (internal footnote omitted)). A careful and thorough review of the FAC
reveals that Plaintiff included one additional allegation in support of his Eighth Amendment
claim. Specifically, Plaintiff alleges that one aspect of the allegedly inadequate medical care he
was provided was that medical providers initially identified an issue with Plaintiff’s left side, but
in reality there was an issue with his right side “which could be observed by the way he
walk[ed].” (Compare FAC ¶ 7, with Compl. ¶ 7). The addition of this single allegation does not
alter the conclusion reached in the Prior Order. While the October 2014 MRI report indicates that
Plaintiff had “mild loss of disc space height” and “mild . . . disc bulging” on the left side of
Plaintiff’s back (Exs. at 6), thereafter, Plaintiff repeatedly received treatment related to pain on
the right side of his body. (FAC ¶ 4 (On July 28, 2016, Plaintiff alleges that an orthopedic doctor
determined that he has “right foot drop”); id. (Plaintiff discussed with Dr. Akhand whether he
should receive back injections on his left or right side); id. ¶ 5 (on February 3, 2016, Plaintiff
was examined by an orthopedic doctor after complaints of “right foot drop” and “tingling in the
right foot” and the doctor reported that the examination “is suggestive of right L5
radiculopathy”)). To address Plaintiff’s condition, he was examined by doctors on multiple
occasions (id. ¶¶ 4-5), issued a foot brace (id. ¶ 6), and provided physical therapy at least three
times (id.).
Most significantly, Plaintiff added an allegation in the FAC indicating that he did, at
some point, have surgery and that he “do[esn’t] have chronic pain no [sic] more, but still ha[s] a
swollen foot [and] toes.” (Id. ¶ 14). Plaintiff’s allegations demonstrate clearly that he was
repeatedly treated for his medical conditions and do not establish that the treatment was so
inadequate that it posed an unreasonable risk of serious damage to his health. Thus, no Eighth
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Amendment claim lies. See Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“[M]ere
disagreement over the proper treatment does not create a constitutional claim. So 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.” (citing Dean v. Coughlin, 804 F.2d 207, 215 (2d
Cir. 1986))). The Court finds that Plaintiff failed to cure the deficiencies identified in the Prior
Order. The FAC simply does not include allegations which permit the plausible inference that
Plaintiff can satisfy the objective prong of an Eighth Amendment claim.7 Accordingly, Plaintiff’s
claims against the medical providers at Green Haven—Dr. Wolf-Friedman, Dr. Akhand, and Dr.
Kim—are dismissed.
III.
Personal Involvement
As to Plaintiff’s supervisory liability claim, Judge Karas dismissed Plaintiff’s claims
finding that Plaintiff had failed to allege plausibly that Bentivegna, Koenigsmann, and Bernstein
were personally involved in any alleged constitutional deprivation. (Op. & Order at 14-16).
Specifically, the Court found:
Plaintiff only mentions Bentivegna, Koenigsmann, and Bernstein
to the extent they were recipients of his various grievances
regarding his back pain at Green Haven. (Compl. ¶ 7.) To begin,
the Court has already determined that Plaintiff’s recounting of his
medical issues at Green Haven have not plausibly alleged a
constitutional violation. It follows that none of their actions or
inactions following those grievances could constitute direct
participation in a constitutional violation[.] . . . Moreover, even if
there were a plausibly-alleged underlying constitutional violation,
Plaintiff has failed to allege facts that go beyond a claim of
“supervisory liability,” (Compl. ¶¶ 18-19), which is an insufficient
7
The Prior Order noted that while it did not need to reach the question of whether Plaintiff’s allegations
were sufficient to satisfy the subjective prong of a deliberate indifference claim, “none of Plaintiff’s
allegations at this point indicates that any medical provider acted with the requisite mental state of
criminal recklessness.” (Op & Order at 14, n.6). The Court need not, and does not, reach the question of
whether Plaintiff’s allegations are sufficient to satisfy the subjective prong, but notes that Plaintiff has not
added any allegations regarding the Defendants’ mental state.
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basis for liability in § 1983 claims. See, e.g., Sharma v. D’Silva,
157 F. Supp. 3d 293, 306 (S.D.N.Y. 2016) (holding that defendants
who were facility health service directors could not be held liable
for failing to “ensur[e] that a [specialist] examined [the]
[p]laintiff”); Joyner v. Greiner, 195 F. Supp. 2d 500, 506–07
(S.D.N.Y. 2002) (dismissing claims against superintendent and
head physician where defendants either did not respond to
plaintiff’s grievances regarding medical care or responded,
asserting that there was “nothing [the defendant] could do”
(quotation marks omitted)); see also Banks [v. Annucci], 48 F.
Supp. 3d [394,] 416 [(N.D.N.Y. 2014)] (“Where a defendant is a
supervisory official, a mere ‘linkage’ to the unlawful conduct
through the ‘chain of command’ (i.e., under the doctrine of
respondeat superior) is insufficient to show his or her personal
involvement in that unlawful conduct.” (quoting Polk County v.
Dodson, 454 U.S. 312, 325 (1981))).
(Op. & Order at 15-16). The FAC does not include any additional allegations regarding the
supervisory liability claims against Bentivegna, Koenigsmann, and Bernstein. Accordingly, the
claims are dismissed again for lack of personal involvement.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss. While
“[d]istrict courts should frequently provide leave to amend before dismissing a pro se complaint
. . . leave to amend is not necessary when it would be futile.” Reed v. Friedman Mgt. Corp., 541
F. App’x 40, 41 (2d Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
Here, the Court dismisses Plaintiff’s Complaint with prejudice as any amendment would be futile
and Plaintiff has already had an opportunity to amend his pleadings.8 The Court directs the Clerk
to terminate the pending motion (Doc. 93) and terminate this action. The Court further directs the
8
It appears to the Court that Plaintiff has abandoned this litigation. Plaintiff did not file a brief in
opposition to Defendants’ motion to dismiss and has not communicated with the Court in any way since
February 4, 2020 (Doc. 89). Thus, and separately, the Court finds that dismissal of this action pursuant to
Federal Rule of Civil Procedure 41(b) would be appropriate. See Hutter v. Countrywide Bank, N.A., No.
09-CV-10092, 2017 WL 108059, at *3 (S.D.N.Y. Jan. 9, 2017) (“[W]hen a plaintiff abandons or neglects
a cause of action, it can be dismissed for want of prosecution.” (citing Fed. R. Civ. P. 41(b))).
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Clerk to mail a copy of this Memorandum Opinion and Order to Plaintiff at the address provided
on the docket.
SO ORDERED:
Dated: New York, New York
February 5, 2021
_______________________________
Philip M. Halpern
United States District Judge
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