DeLaney v. Perez et al

Filing 40

OPINION AND ORDER re: 33 MOTION to Dismiss . filed by W. Stolfi, Melissa M. Pickett, Quinones, Shanikqua Harrison, Ada Perez. For the foregoing reasons, Defendants' motion to dismiss Plaintiff's due process and wrongf ul confinement claims against Defendants Perez, Pickett, and Harrison is GRANTED with prejudice. Defendants' motion to dismiss claims against Defendant's Stolfi and Quinones is GRANTED without prejudice. Plaintiff is granted leave to amen d his Complaint in accordance with this Opinion. Plaintiff shall file an amended Complaint on or before August 31, 2021. An amended prisoner complaint form is attached to this opinion. If an amended pleading is not filed by August 31, 2021, or Plai ntiff fails to move for an extension to that deadline, the remaining claims in the Complaint may be dismissed with prejudice and the action terminated without further notice. If Plaintiff elects to timely file an Amended Complaint, then Defendants shall have until 30 days from the date of Plaintiff's filing to answer the Amended Complaint or seek leave to file a non- frivolous motion to dismiss. The Clerk of Court is directed to terminate the motion at ECF No. 33 and to mail a copy of this opinion to pro se Plaintiff at the address listed on ECF and show service on the Docket., Quinones (MD Downstate CF) and W. Stolfi (DMD, Downstate CF) terminated., ( Amended Pleadings due by 8/31/2021.) (Signed by Judge Nelson Stephen Roman on 7/16/2021) (nb) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

7/16/2021

CLARENCE DELANEY, JR.,
Plaintiff,
No. 19-cv-6084 (NSR)
OPINION & ORDER

-againstADA PEREZ, et al.,
Defendants.
NELSON S. ROMÁN, United States District Judge

Plaintiff Clarence DeLaney, Jr. (“Plaintiff”) brings this action against Ada Perez
(“Perez”), Superintendent, Downstate Correctional Facility (“Downstate”); Melissa M. Pickett
(“Pickett”), Inmate Grievance P.; Department of Corrections and Community Supervision
(“DOCCS”); Shanikqua Harrison (“Harrison”), Supervising Offender Coordinator, Downstate;
W. Stolfi (“Stolfi”), DMD, Downstate; and Dr. Quinones (“Quinones”), MD, Downstate;
(together, “Defendants”)1. Before the Court is Defendants’ motion to dismiss the Complaint,
(ECF No. 33), which Plaintiff failed to oppose. For the following reasons, Defendants’ motion is
GRANTED.
BACKGROUND
The following facts are taken from the Complaint and are assumed to be true for the
purposes of this motion. (Exhibit A, Dkt. No. 1)
On or about January 6, 2017, Plaintiff was sentenced by the County Court of Albany to
two to four years’ parole supervision pursuant to CPL § 410.19. (Id. at 4.) To execute the parole

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The original complaint also included claims against Defendants Pariso, Smith, Bannister, Amisano, Dinello,
Heller, and Infantino. These claims, as they arose at Willard DTC, were severed from the action and transferred to
the Western District of New York. (See ECF No. 11.)

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supervision sentence as an alternative to incarceration, the Albany County Court ordered that
Plaintiff be transferred to the Willard Drug Program (“Willard”) to complete a ninety-day
program. (Id.) This order appears in the “remarks” section of the Uniform Sentence &
Commitment form. However, on the same form, the box that reads “execute as a sentence of
parole supervision” is left unchecked. (Id. at 17.) Due to this inconsistency, Plaintiff’s
conditional release date was set as January 28, 2019, (Id. at 18), and on or about January 20,
2017, Plaintiff was transferred to Downstate. (Id.) While at Downstate, Plaintiff alleges he
advised his counselor that he was sentenced to parole. The counselor stated that Plaintiff’s
records and computation sheet only stated Plaintiff was sentenced to two to four years. (Id.)
Plaintiff filed a grievance which was denied. (Id.)
Plaintiff was then sent to Marcy Correctional Facility (“Marcy”) on or about February 23,
2017 and was ultimately sent to Willard on or about March 9, 2017. (Id. at 5.) Plaintiff alleges
defendants Perez, Pickett, and Harrison denied him due process because his incarceration was
extended by not facilitating his transfer to Willard within ten days. (Id. at 7, 12-13.) Plaintiff
alleges that while at Downstate, he requested medical accommodations of a CPAP machine for
his sleep apnea as well as a tens machine for back pain related to scoliosis. (Id. at 5.) Plaintiff
alleges Quinones was deliberately indifferent to his medical needs because although Plaintiff was
advised that he would get these medical devices, he never received them before being transferred
to Marcy. (Id. at 5, 14.) Plaintiff also alleges that Stolfi was deliberately indifferent to his
medical needs by refusing to pull two teeth which presented an infection. (Id. at 8, 14.)
Motion to Dismiss Standard
On a motion to dismiss under Fed. R. Civ. P. 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

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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-pleaded 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. “Although for the purpose of a motion to dismiss [a
court] must take all of the factual allegations in the complaint as true, [it is] ‘not bound to accept
as true a legal conclusion couched as a factual allegation.’” Id. (quoting Twombly, 550 U.S. at
555). It is not necessary for the complaint to assert “detailed factual allegations,” but must allege
“more than labels and conclusions.” Twombly, 550 U.S at 555. The facts in the complaint “must
be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true.” Id.
“Pro se complaints are held to less stringent standards than those drafted by lawyers, even
following Twombly and Iqbal.” Thomas v. Westchester, No. 12–CV–6718 (CS), 2013 WL
3357171, at *2 (S.D.N.Y. July 3, 2013). The court should read pro se complaints “‘to raise the
strongest arguments that they suggest,’” Kevilly v. New York, 410 F. App’x 371, 374 (2d Cir.
2010) (summary order) (quoting Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)); see also
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“even after Twombly, though, we remain
obligated to construe a pro se complaint liberally”). “However, even pro se plaintiffs asserting
civil rights claims cannot withstand a motion to dismiss unless their pleadings contain factual
allegations sufficient to 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) (quoting Twombly, 550 U.S. at 555)
(internal quotations omitted). Dismissal is justified, therefore, where “the complaint lacks an
allegation regarding an element necessary to obtain relief,” and therefore, the “duty to liberally
construe a plaintiff’s complaint [is not] the equivalent of a duty to re-write it.” Geldzahler v. N.Y.

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Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (internal citations and alterations
omitted).
Discussion
The court interprets the Complaint to allege six claims: (1) a due process violation
pursuant to 42 U.S.C § 1983 against Defendants Perez, Pickett, and Harrison, (2) a deliberate
indifference claim pursuant to 42 U.S.C § 1983 against Defendants Stolfi and Quinones, (3) an
equal protection claim pursuant to 42 U.S.C § 1983 against Defendants Stolfi and Quinones, (4)
a medical malpractice claim against Defendants Stolfi and Quinones, (5) an intentional infliction
of emotional distress claim against Defendants Perez, Pickett, and Harrison and (6) a wrongful
confinement claim against Defendants Perez, Pickett, and Harrison.
I.

Section 1983 Claims
Section 1983 provides, in relevant part, that: “[e]very person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State … subjects, or causes to be
subjected, any citizen of the United States … to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C.
§ 1983. Section 1983 “is not itself a source of substantive rights, but a method for vindicating
federal rights elsewhere conferred by those parts of the United States Constitution and federal
statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see Patterson v.
County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To state a claim under Section 1983, a
plaintiff must allege “(1) the challenged conduct was attributable to a person who was acting
under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed by the
U.S. Constitution.” Castilla v. City of New York, 2013 WL 1803896, at *2 (S.D.N.Y. April 25,
2013); see Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). Therefore, a Section 1983 claim

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has two essential elements: (1) the defendant acted under color of state law, and (2) as a result of
the defendant’s actions, the plaintiff suffered a denial of his federal statutory rights, or his
constitutional rights or privileges. See Annis v. Westchester County, 136 F.3d 239, 245 (2d Cir.
1998); Quinn v. Nassau Cnty. Police Dep't, 53 F. Supp. 2d 347, 354 (E.D.N.Y. 1999) (noting
that Section 1983 “furnishes a cause of action for the violation of federal rights created by the
Constitution”) (citation omitted).
A. Personal Involvement
“[A] defendant in a § 1983 action may not be held liable for damages for constitutional
violations merely because [he or she] held a high position of authority.” Black v. Coughlin, 76
F.3d 72, 74 (2d Cir. 1996); see also Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.
2013) (affirming a district court’s dismissal of claims against a prison warden where plaintiff did
not allege the warden’s personal involvement in, or awareness of, the health, safety, and
communications issues raised by plaintiff); Walker v. Schriro, No. 11-CV-9299 (JPO), 2013 WL
1234930, at *15 (S.D.N.Y. Mar. 26, 2013) (“A defendant’s status as warden or commissioner of
a prison, standing alone, is [ ] insufficient to support a finding of supervisory liability.”). Rather,
“a plaintiff must establish a given defendant’s personal involvement in the claimed violation in
order to hold that defendant liable in his individual capacity.” Warren v. Pataki, 823 F.3d 125,
136 (2d Cir. 2016) (emphasis added) (internal quotation marks omitted). In other words, there
must be specific factual allegations as to how each defendant is personally involved in the
alleged illegal activities.
Defendants argue that Plaintiff’s Section 1983 claims against Perez, Pickett, and Harrison
should be dismissed due to a lack of personal involvement. (ECF No. 34 at 7.) Previously, courts
within the Second Circuit had followed the standards set out in Colon v. Coughlin, which

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included five categories of evidence which, if factually presented, may have established a
supervisory defendant’s personal involvement. 58 F.3d 865, 873 (2d Cir. 1995). But see
Reynolds v. Barrett, 685 F.3d 193, 205 n.14 (2d Cir. 2012) (“Iqbal has ... engendered conflict
within our Circuit about the continuing vitality of the supervisory liability test set forth
in Colon.”). The Second Circuit has since stated that, “Iqbal holds that a plaintiff may not rely on
a special test for supervisory liability. Rather, ‘a plaintiff must plead that each Governmentofficial defendant, through the official's own individual actions, has violated the
Constitution.’” Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020) (quoting Iqbal, 556 U.S.
at 676). Further, the Second Circuit, agreeing with the Fifth, Seventh, Eighth, Ninth, and Tenth
Circuits, Id. at 618 n.6, officially stated that, “[t]o hold a state official liable under § 1983, a
plaintiff must plead . . . the elements of the underlying constitutional violation directly against
the official without relying on a special test for supervisory liability.” Id. at 620 (emphasis
added). Accordingly, here, to hold an official liable under Section 1983, in the context of the
Eight Amendment, the standards for supervisory liability set out in Colon may not be used. As
stated above, Plaintiff must plead that “each Government-official, through the official’s own
individual actions, has violated the constitution”. Id. at 616.
Plaintiff alleges that his grievances were ignored by his supervisors. Defendants argue that
Plaintiff’s claims against Defendants—here, Perez, Pickett, and Harrison —in their individual
capacities should be dismissed because “[m]ere receipt of a letter is not sufficient to establish the
personal liability of a supervisor.” (ECF No. 34.) The February 10, 2017 e-mail correspondence
between Defendants Pickett and Harrison establishes both defendants’ awareness of the alleged
violation. Further, Defendant Perez signed off on the denial of Plaintiff’s grievance after it had
been investigated, signaling her awareness of the alleged violation as well. While “mere receipt

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of a letter or grievance, without personally investigating or acting” Alvarado v. Westchester
Cnty., 22 F. Supp. 3d 208 (S.D.N.Y. 2014) is not enough to establish a supervisor’s personal
involvement, a plaintiff can establish personal involvement “where a supervisory official
receives and acts on a prisoner’s grievance.” Johnson v. Wright, 234 F. Supp. 2d 352, 363
(S.D.N.Y. 2002); see also Johnson v. Bendheim, 00 CIV. 720 (JSR), 2001 WL 799569 (S.D.N.Y.
July 13, 2001) (motion to dismiss denied as to prison official who received prisoners' grievances
and denied them). Defendants Pickett, Harrison, and Perez all received and acted on Plaintiff’s
grievance. Pickett and Harrison proactively sent the grievance to the required office to be
investigated while Perez signed off on the grievance denial. Defendants even note that “Pickett
and Harrison made an effort to look into the matter.” (ECF No. 34.) Accordingly, the Court finds
Plaintiff has alleged sufficient facts to suggest that Defendants Pickett, Harrison, and Perez,
“after being informed of the violation through a report or appeal, failed to remedy the wrong”
Johnson, 234 F. Supp. 2d 352, 363; therefore, personal involvement has been established.
B. Due Process Violation
The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty,
or property, without due process of law.” U.S. Const. amend. XIV. To state a procedural due
process claim, Plaintiff must allege “(1) that Defendants deprived him of a cognizable interest in
life, liberty, or property, (2) without affording him constitutionally sufficient process.” Proctor v.
LeClaire, 846 F.3d 597, 608 (2d Cir. 2017) (internal quotation marks omitted). Defendants
argue that Plaintiff’s Constitutional Due Process rights were not violated when he was
improperly kept at Downstate for approximately fifty-six days past the sentencing court’s
judgement that he was to be transferred to a drug treatment program pursuant to CPL § 410.19.
A prisoner bringing a Section 1983 claim for a due process violation faces significant obstacles

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before the claim can be heard on the merits. First, a prisoner first must identify a liberty interest
protected by the Due Process Clause of which he was deprived. See Sandin v.Conner, 515 U.S.
472, 484 (1995)(stating that prisoners do not automatically have a liberty interest in freedom
from any change in the conditions of their confinement). States under certain circumstances can
create liberty interests that are protected by the Due Process. Id. “In order for a state prisoner to
have an interest in parole that is protected by the Due Process Clause, he must have a legitimate
expectancy of release that is grounded in the state's statutory scheme.” Barna v. Travis, 239 F.3d
169, 170 (2d Cir. 2001) (citing Greenholtz, 442 U.S. at 11-13; Berard v. Vermont Parole Board,
730 F.2d 71,75 (2d Cir. 1984); Boothe v. Hammock, 605 F.2d 661, 663 (2d Cir. 1979)). “Neither
the mere possibility of release, nor a statistical probability of release, gives rise to legitimate
expectancy of release on parole.” Barna, 239 F.3d at 171. See also Victory v. Pataki, 814 F.3d
47, 59 (2d Cir. 2016) (“[I]n order to have a protectable liberty interest, a prisoner must have
more than a hope or a unilateral expectation of release. He must, instead, have a legitimate claim
of entitlement to it.”) (quotations and citations omitted).
The Second Circuit was recently confronted with a somewhat similar issue in Victory—
whether an inmate granted an open parole release date has a liberty interest in parole. Victory,
814 F.3d 47. Referencing its earlier decision in Green v. McCall, 822 F.2d 284 (2d Cir. 1987),
the Second Circuit described a “continuum” of liberty interests in the realm of a prisoner's rights
to release. 814 F.3d at 60. At the high end of the spectrum (i.e., a recognized liberty interest) is
the parolee, since “it is well established that his parole may not be revoked without due process.”
Id. (citing Young v. Harper, 520 U.S. 143 (1997); Morrissey v. Brewer, 408 U.S. 471 (1972)).
Below the parolee is the parole grantee, and below the parole grantee is the inmate without a
parole date (non-grantee). Id. The Second Circuit in Victory reasoned that because the Supreme

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Court held that even a non-grantee may have a liberty interest, a parole grantee—who has a
higher place on the liberty interest spectrum—has a liberty interest entitling him to due process
in a rescission hearing. Id.
Extending the Second Circuit's reasoning in Victory to the present situation, the Court finds
that Plaintiff arguably has a protectable liberty interest in his release to Willard. New York CPL
§ 410.91 states:
“if the court directs that the sentence be executed as a sentence of parole supervision, it shall
remand the defendant for immediate delivery to a reception center operated by the state
department of corrections and community supervision, in accordance with section 430.20 of
this chapter and section six hundred one of the correction law, for a period not to exceed ten
days. An individual who receives such a sentence shall be placed under the immediate
supervision of the department of corrections and community supervision and must comply
with the conditions of parole, which shall include an initial placement in a drug treatment
campus for a period of ninety days at which time the defendant shall be released therefrom.”
(emphasis added)
The mandatory language (“shall”) in CPL § 410.91 may confer upon Plaintiff a “‘legitimate
expectancy of release . . . grounded in [New York's] statutory scheme.’” Graziano v. Pataki, 689
F.3d 110, 114 (2d Cir. 2012) (quoting Barna, 239 F.3d at 170); see also Board of Pardons v.
Allen, 482 U.S. 369, 377-81 (1987) (holding that Montana statute using the language "shall"
created a protected liberty interest).
Though Plaintiff's place on the liberty interest continuum may not be as high as the plaintiff
in Victory, it likely is above the non-grantee with a potential liberty interest and does not
represent “simply a unilateral hope.” Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458,

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465 (1981). Accordingly, Plaintiff has sufficiently identified an arguable liberty interest
necessary to claim a due process violation.
Nonetheless, even if there is a liberty interest, the Plaintiff will fail if the procedural remedies
available to him were “constitutionally sufficient.” (Proctor v. LeClaire, 846 F.3d 597, 608 (2d
Cir. 2017) (internal quotation marks omitted). “When reviewing alleged procedural due process
violations, the Supreme Court has distinguished between (a) claims based on established state
procedures and (b) claims based on random, unauthorized acts by state employees.” Peterson v.
Tomaselli, 469 F. Supp. 2d at 165 (citing Hellenic Am. Neighborhood Action Comm. v. City of
N.Y., 101 F.3d 877, 880 (2d Cir. 1996) (citations omitted)). With respect to random,
unauthorized acts, a prisoner's due process is not violated “so long as the government provides a
meaningful remedy subsequent to deprivation.” Locurto v. Safir, 264 F.3d 154, 172 (2d Cir.
2001). If the claim is based on established state procedures, then “the availability of postdeprivation procedures will not, ipso facto, satisfy due process.” Hellenic, 101 F.3d at 880.
However, Plaintiff’s allegations regarding the miscalculation of his release date fall within the
ambit of “random, unauthorized acts.” Consequently, Plaintiff “has the burden of demonstrating
that no meaningful remedy was available subsequent to his liberty deprivation.” 469 F. Supp. 2d
at 165-66. The Second Circuit has held that the availability of a habeas proceeding constitutes a
meaningful post-deprivation remedy. See Schultz v. Egan, 103 F. App’x 437, 441 (2d Cir. 2004)
(“when random and unauthorized acts result in a prisoner being held beyond his maximum
release date, the availability of a habeas proceeding would almost certainly suffice to satisfy the
due process clause”)(internal quotation marks omitted). In the present case, Plaintiff not only had
a habeas proceeding available to him as recourse for correcting his sentence but also availed
himself of that remedy. In a May 25, 2017 Decision and Judgement on Plaintiff’s petition for a

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writ of habeas corpus, the Seneca County Supreme Court ordered Plaintiff’s release from Willard
within ten days. (ECF No. 1.) Accordingly, the Court finds that the availability of a habeas
proceeding and Plaintiff’s use of that remedy suffices to satisfy the due process clause.
Nevertheless, even if Plaintiff did have a protected liberty interest and was not afforded
constitutionally sufficient process, Defendants are entitled to qualified immunity.
C. Qualified Immunity
Qualified immunity shields government officials whose conduct “does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The scope of qualified immunity is broad, and it
protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v.
Briggs, 475 U.S. 335, 341(1986). A qualified immunity defense is established where “(a) the
defendant's action did not violate clearly established law, or (b) it was objectively reasonable for
the defendant to believe that his action did not violate such law.” Tierney v. Davidson, 133 F.3d
189, 196 (2d Cir. 1998). “Qualified immunity provides government officials immunity from suit
rather than a mere defense to liability.” Looney v. Black, 702 F.3d 701, 705 (2d Cir. 2012)
(internal citations and quotation marks omitted). When considering a claim of qualified
immunity, courts ask first whether there was a violation of a clearly established constitutional
right. Id. at 706. “A right is clearly established if the law (1) was ‘defined with reasonable
clarity,' (2) has been affirmed by 'the Supreme Court or the Second Circuit[,]’ and (3) where the
conduct at issue would have been understood by a reasonable defendant to be unlawful under the
existing law.” Id. (quoting Young v. Cnty. of Fulton, 160 F.3d 899, 903 (2d Cir. 1998)); see also
Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (“We do not require a case directly on point, but
existing precedent must have placed the statutory or constitutional question beyond debate.”);

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accord Hunter v. Bryant, 502 U.S. 224, 227(1991) (“[W]e repeatedly have stressed the
importance of resolving immunity questions at the earliest possible stage in litigation.”).
The individual Defendants’ actions are protected by qualified immunity because Plaintiff’s
due process right was not defined with reasonable clarity. The Second Circuit has yet to address
a case which contemplates whether a due process violation occurred when an individual is
subject to continued confinement in DOCCS custody, beyond a state mandated deadline, because
of a mistake on a classification form. Courts have reached diverging decisions regarding the
standards that should be met for an inmate to have a liberty interest in parole. See Sandin v.
Conner, 515 U.S. 472 (1995)(holding that a liberty interest exists where a confinement imposes
atypical and significant hardship on the inmate and that mandatory regulations are not
exclusively dispositive of the issue); but see Victory v. Pataki, 814 F.3d 47 (2d Cir. 2016)
(holding that an inmate who has been granted an open parole release date has a legitimate
expectancy of release that is grounded in New York's regulatory scheme has a liberty interest
protected by the due process clause); but see Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1 (1979) (holding that in order for a state prisoner to have an interest in
parole that is protected by the Due Process Clause, he must have a legitimate expectancy of
release that is grounded in the state's statutory scheme). Given the muddled and contradictory
nature of caselaw regarding liberty interests for parolees, and that “existing precedent must have
placed the constitutional question beyond debate” Reichle v. Howards, 566 U.S. 658, 664
(2012)(internal quotation and citation omitted), the Court concludes that the particular nature of
Defendant’s due process rights was not defined with reasonable clarity. Thus, Defendants could
not have violated a “clearly established” right.

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Further, qualified immunity applies if the official's mistake as to what the law requires is
reasonable. Malley, 475 U.S. at 341. It does not apply if, on an objective basis, it is obvious that
no reasonably competent official would have taken the actions of the alleged violation. Id.
Defendants Perez, Pickett, and Harrison were acting based on what they assumed was a correct
Reception/Classification form that reflected Plaintiff’s conditional release date as January 28,
2019. The Court concludes that a reasonably competent official could read the
Reception/Classification form to mean that Plaintiff’s sentence was not to be executed as a
parole supervision sentence, even though the form was mistaken. (ECF No. 1.) Therefore, and
particularly because the scope of those covered by qualified immunity is quite broad, Malley,
475 U.S. at 34, Defendants’ motion to dismiss Plaintiff’s due process claims is granted.
D. Deliberate Indifference to Serious Medical Needs
The Constitution requires that prison officials “provide humane conditions of confinement”
and “ensure that inmates receive adequate food, clothing, shelter, and medical care.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994). A post-conviction inmate’s claims arise under “the Cruel
and Unusual Punishments Clause of the Eighth Amendment.” Darnell v. Pineiro, 849 F.3d 17,
29 (2d Cir. 2017). Moreover, to set forth a Section 1983 claim for conditions of confinement, a
plaintiff must allege that an individual “acted with deliberate indifference to the challenged
conditions.” Sanders v. City of New York, 2018 WL 3117508, at *6 (S.D.N.Y. June 25, 2018).
"Not every lapse in prison medical care will rise to the level of a constitutional violation” and
"simple negligence is not sufficient to bring a § 1983 claim.” Smith v. Carpenter, 316 F.3d 178,
184 (2d Cir. 2003). Moreover, “the Eighth Amendment is not a vehicle for bringing medical
malpractice claims, nor a substitute for state tort law.” Id. and “medical malpractice does not
become a constitutional violation merely because the victim is a prisoner.” Estelle v. Gamble,

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429 U.S. 97, 106 (1976). To rise to the level of a constitutional violation, the conduct
complained of must “shock the conscience” or amount to a “barbarous act.” McCloud v.
Delaney, 677 F. Supp. 230, 232 (S.D.N.Y. 1988) (citing United States ex rel. Hyde v. McGinnis,
429 F.2d 864 (2d Cir. 1970)).
To assert a deliberate indifference claim, a plaintiff “must show that the conditions, either
alone or in combination, pose an unreasonable risk of serious damage to his health.” Darnell,
849 F.3d at 30. “There is no ‘static test’ to determine whether a deprivation is sufficiently
serious; instead, ‘the conditions themselves must be evaluated in light of contemporary standards
of decency.’” Id. at 29 (quoting Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)). To
determine whether a medical need rises to the level of a constitutional claim for deprivation of
medical care, the court considers factors such as “whether a reasonable doctor or patient would
find the injury important and worthy of treatment, whether the medical condition significantly
affects an individual's daily activities, and whether the illness or injury inflicts chronic and
substantial pain.” Charles v. Orange Cnty., 925 F.3d 73 (2d Cir. 2019) “In most cases, the actual
medical consequences that flow from the denial of care are highly relevant in determining
whether the denial of treatment subjected the detainee to a significant risk of serious harm.” Id.
Here, Plaintiff alleges no actual medical consequences arising from the denial of care beyond
“pain and suffering.”
The Court finds that Plaintiffs medical needs for sleep apnea and his dental complaints do
not meet the burden of seriousness required for a constitutional violation. Plaintiff makes no
allegations of tooth loss or other substantial consequences characteristic of a successful
deliberate indifference to medical needs claim. See Booker v. Griffin, 16-CV-00072 (NSR), 2019
WL 549065 (S.D.N.Y. Feb. 11, 2019) (holding that plaintiff’s allegations of months of

14

constipation due to lack of allergy medication and tooth loss due to a lack of dental care stated a
sufficiently serious medical need); see also Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir.
2000) (holding that a medical need is considered serious where the denial of treatment causes
plaintiff to suffer a permanent loss or life-long handicap). Because “a complaint that a physician
has been negligent in diagnosing or treating a medical condition does not state a valid claim of
medical mistreatment under the Eighth Amendment,” Defendants’ motion to dismiss Plaintiff’s
claim of deliberate indifference to serious medical needs is granted. Estelle, 429 U.S. 97 at 106.
To the extent that Plaintiff can identify specific consequences of treatment denial for sufficiently
serious medical needs, Plaintiff is granted leave to replead his claim.
E. Equal Protection or “Discrimination” Claim
Plaintiff brings a claim of discrimination and alleges that he was intentionally denied a
CPAP machine, was denied permission to use the handicap bathroom, and that his grievances
were ignored. The Court interprets the complaint of “discrimination” to allege a violation of the
equal protection clause of the Constitution. (Exhibit A, Dkt. No. 1, p.10) To sustain an equal
protection claim, a plaintiff must allege that (1) "the person, compared with others similarly
situated, was selectively treated; and (2) that such selective treatment was based on
impermissible considerations such as race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure a person." Tyk v. Surat, 675 F.
App'x 40, 42 (2d Cir. 2017) (summ. order) (quoting Freedom Holdings, Inc. v. Spitzer, 357 F.3d
205, 234 (2d Cir. 2004)).
Under the first prong, a Plaintiff must identify a “similarly situated” comparator and
plausibly allege that he or she was “treated differently” to that comparator. See Hampshire
Recreation, LLC v. The Vill. of Mamaroneck, 664 F. App'x 98, 100 (2d Cir. 2016) (summ. order)
15

Further, “a plaintiff must identify comparators whom a prudent person would think were roughly
equivalent.” JF v. Carmel Cent. Sch. Dist., 168 F. Supp. 3d 609. Markedly, Plaintiff does not
provide a single similar or similarly situated comparator that was subject to different treatment.
Plaintiff’s conclusory allegations and his personal opinion that such treatment was motivated by
discriminatory intent are not enough to plead a Section 1983 claim for a violation of the equal
protection clause. See EklecCo NewCo LLC v. Town of Clarkstown, 16-CV-6492 (NSR), 2019
WL 2210798 (S.D.N.Y. May 21, 2019). Accordingly, to the extent Plaintiff asserts an equal
protection claim, said claim is dismissed without prejudice.
II.

Plaintiff’s Claims under State Law
a. Medical Malpractice
Plaintiff alleges medical malpractice arising from Defendant Quinone’s failure to provide

him with a CPAP machine for his sleep apnea and a tens unit for his back pain. Plaintiff also
alleges medical malpractice arising from Dr. Stolfi’s failure to remove a tooth that presented an
infection in an X-Ray. This Court has noted that “to assert a valid medical malpractice claim
against a physician, a plaintiff must establish that the physician deviated or departed from
accepted community standards of practice and that such departure was a proximate cause of the
plaintiff’s injuries.” See Gross v. Friedman, 73 N.Y.2d 721, 722-723(1988); see also Gale v.
Smith & Nephew, Inc., 989 F. Supp. 2d 243, 252 (S.D.N.Y. 2013)(quoting Williams v. Sahay,
783 N.Y.S.2d 664, 666 (App. Div. 2d Dep’t 2004)).
Lacking from Plaintiff’s complaint are factual allegations that Dr. Stolfi’s proposed
course of treatment for an infected tooth and treatment of sleep apnea and scoliosis was a
departure from accepted medical standards of practice. Plaintiff further fails to allege the nature
of the injuries purportedly suffered from the failure to remove the tooth and receive a CPAP and

16

TENS machine and simply alleges “pain and suffering” with no specificity. Accordingly,
Plaintiff has failed to assert sufficient facts to support a plausible medical malpractice claim.
Defendants’ motion to dismiss Plaintiff’s medical malpractice claim is granted without prejudice.
b. Intentional Infliction of Emotional Distress
Construed liberally, the Court interprets Plaintiff’s fourth cause of action to be a claim of
intentional infliction of emotional distress against Defendant’s Perez, Pickett, and Harrison for
not allowing his sentence to be executed as a parole supervision sentence. To assert a claim of
intentional infliction of emotional distress under New York law, plaintiff must allege: (1)
extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal
connection between the conduct and the injury, and (4) severe emotional distress. See Bender v.
City of New York, 78 F.3d 787, 790 (2d Cir. 1996); Cuellar v. Love, 11-CV-3632 NSR, 2014 WL
1486458 (S.D.N.Y. Apr. 11, 2014) (quoting Howell v. N.Y. Post Co., 81 N.Y.2d 115, 121
(1993)). Because the claim of intentional infliction of emotional distress is so
disfavored, Williams v. City of Mount Vernon, 428 F. Supp. 2d 146, 160 (S.D.N.Y. 2006), a
plaintiff must typically show that the defendant's conduct has been "so extreme in degree" as to
exceed "all possible bounds of decency." See Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293,
303 (1983). Any allegations of suffering from severe emotional distress must be supported with
objective evidence and not speculative claims. See Allam v. Meyers, 906 F. Supp. 2d 274, 282
(S.D.N.Y. 2012) (citing Roche v. Claverack Coop. Ins. Co., 59 A.D.3d 914, 919 (3rd Dept.
2009)); Cusimano v. United Health Servs. Hosps., Inc., 91 A.D.3d 1149, 1152 (3rd Dept.
2012); Walentas v. Johnes, 257 A.D.2d 352, 353 (1st Dept. 1999); Christenson v. Gutman, 249
A.D.2d 805, 808-09 (3rd Dept. 1998)).

17

Plaintiff alleges no evidence to demonstrate that the Defendants performed an intentional act
with the purpose of causing or disregarding a substantial probability of causing severe emotional
distress. The evidence alleged demonstrates that Defendants Perez, Pickett, and Harrison
investigated Plaintiff’s grievance, weighed the information obtained, and determined, though
mistakenly, that plaintiff was to remain in the Downstate facility. Plaintiff’s allegations cannot
support a finding that Defendants knew of the mistake and subjected him to imprisonment
anyway. Accordingly, and particularly because claims for intentional infliction of emotional
distress are highly disfavored, the Court finds that Plaintiff’s complaint is not sufficient to “raise
a right to relief above the speculative level.” Twombly, 550 U.S at 555. The Court grants
defendant’s motion to dismiss the claim of intentional infliction of emotional distress without
prejudice.
c. Wrongful Confinement
Plaintiff brings a wrongful confinement claim against Defendants Perez, Pickett, and
Harrison stemming from the same incidents that gave rise to Plaintiff’s due process claim.
Similar to Plaintiff’s due process claim, Defendants Perez, Pickett, and Harrison are protected by
qualified immunity. See Looney v. Black, 702 F.3d 701, 705 (2d Cir. 2012). As stated above,
the Court concludes that a reasonably competent official could read the Reception/Classification
form to mean that Plaintiff’s sentence was not to be executed as a parole supervision sentence,
even though the form was mistaken. (ECF No. 1.) The scope of those covered by qualified
immunity is broad, Malley, 475 U.S. at 34 and qualified immunity is not merely a defense to
liability but an immunity from suit. See Looney, 702 F.3d 701, 705. Therefore, Defendants’
motion to dismiss Plaintiff’s wrongful confinement claim is granted with prejudice.

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CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss Plaintiff’s due process and
wrongful confinement claims against Defendants Perez, Pickett, and Harrison is GRANTED
with prejudice. Defendants’ motion to dismiss claims against Defendant’s Stolfi and Quinones is
GRANTED without prejudice. Plaintiff is granted leave to amend his Complaint in accordance
with this Opinion. Plaintiff shall file an amended Complaint on or before August 31, 2021. An
amended prisoner complaint form is attached to this opinion. If an amended pleading is not filed
by August 31, 2021, or Plaintiff fails to move for an extension to that deadline, the remaining
claims in the Complaint may be dismissed with prejudice and the action terminated without
further notice. If Plaintiff elects to timely file an Amended Complaint, then Defendants shall
have until 30 days from the date of Plaintiff's filing to answer the Amended Complaint or seek
leave to file a non-frivolous motion to dismiss. The Clerk of Court is directed to terminate the
motion at ECF No. 33 and to mail a copy of this opinion to pro se Plaintiff at the address listed
on ECF and show service on the Docket.

Dated:

July 16, 2021
White Plains, New York

SO ORDERED:

________________________________
NELSON S. ROMÁN
United States District Judge

19

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

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:

Page 2

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
Page 3

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.

Page 4

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.

Page 5

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:

Page 6