Amaker et al v. Goord et al

Filing 91

DECISION AND ORDER adopting in part 79 Report and Recommendations; and granting in part and denying in part the defendants' 41 58 68 motions to dismiss. The Clerk of Court is directed to amend the caption of this action to include Hardi n and Annucci as defendants. The case is referred back to Judge Schroeder for further proceedings consistent with 23 Judge Arcaras referral order of May 6, 2010. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 3/5/2019. (LCH) (Chambers mailed a copy of D&O to pro se plaintiff on 3/5/2019).-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANTHONY AMAKER, et al.,,
Plaintiffs,
v.

09-CV-396
DECISION AND ORDER

COMM. G. S. GOORD, et al.,
Defendants.

On July 3, 2007, the pro se plaintiffs commenced this action in the Southern
District of New York under 42 U.S.C. § 1983, and it later was transferred to the Western
District of New York. Docket Items 7-1 and 7-2. On May 6, 2010, United States District
Judge Richard J. Arcara referred the case to United States Magistrate Judge H.
Kenneth Schroeder, Jr., for all proceedings under 28 U.S.C. § 636(b)(1)(A) and (B).
Docket Item 23. After the plaintiffs were granted several extensions of time to amend
their complaint, see Docket Items 22, 26, and 28; see also Docket Item 31, they filed an
amended complaint on February 17, 2011. Docket Item 29.
On July 20, 2012, most defendants moved to dismiss or, in the alternative, for a
more definite statement. Docket Item 41. Not all defendants had yet been served,
however, see Docket Item 49, and so, on October 30, 2012, defendants W. Huffer, John
Schuck, and Lester Wright 1 moved to dismiss. Docket Item 58. On January 10, 2013,
defendant R. Chistensen moved to dismiss. Docket Item 68. On February 21, 2013,
1

Some defendants were named in the complaints by their full name; others by
initial and last name. This decision and order will refer to the defendants as they were
named in the complaints.

plaintiff Anthony D. Amaker 2 responded to the defendants’ motions, Docket Items 72
and 73, and on February 28, 2013, the defendants replied, Docket Item 74.
On March 7, 2016, the case was reassigned to the undersigned from Judge
Arcara. Docket Item 78. On June 27, 2016, Judge Schroeder issued a Report and
Recommendation (“R&R”), finding that the defendants' motions should be granted in
part and denied in part. Docket Item 79. On September 15, 2016, Amaker objected to
the R&R. Docket Item 84. 3 On November 4, 2016, the defendants responded to the
objections. Docket Item 88. On November 28, 2016, Amaker replied. Docket Item 89.
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A district court
must conduct a de novo review of those portions of a magistrate judge’s
recommendation to which objection is made. 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b)(3). This Court therefore has carefully reviewed the thorough R&R,
the record in this case, the objection and response, and the pleadings. Based on that
de novo review, the Court accepts some of Judge Schroeder’s recommendations but
respectfully does not adopt others, as addressed below.

2

All the plaintiffs in this case have the last name “Amaker.” See Docket Item 29
at 21. Because the facts in the complaint make it clear that plaintiff Anthony D. Amaker
is the principal plaintiff, this order will refer to him as “Amaker” and will refer to other
plaintiffs by their first and last names.
3

Although this case includes a number of plaintiffs, only plaintiff Amaker objected
to the R&R. See Docket Item 84 at 1, 9. Having reviewed his objections, this Court
concludes that each of his objections involves some interest that is personal to him. But
Amaker is forewarned that “because pro se means to appear for one’s self, a person
may not appear on another person’s behalf in the other’s cause.” Iannaccone v. Law,
142 F.3d 553, 558 (2d Cir. 1998). If, in any future submission, Amaker attempts to
litigate an interest that is not personal to him, his submission will not be considered.
See id.
2

DISCUSSION 4
When considering a motion to dismiss, the court accepts “the factual allegations
in the complaint as true and draw[s] all reasonable inferences in the plaintiffs’ favor.”
Mantikas v. Kellogg Co., 910 F.3d 633, 636 (2d Cir. 2018). Therefore, the facts that
follow, summarized in connection with the discussion of each specific objections, are
taken from a liberal reading of the amended complaint.
I.

PRISON OFFICIALS’ OBLIGATION TO ASSIST INMATES IN DEFENDING
CHARGES OF PRISON DISCIPLINARY RULE VIOLATIONS
After prison officials issued Amaker a misbehavior report, they provided him with

a hearing on the report’s allegations. Docket Item 29 at 5. “Supt. Greene assigned
CHO Harvey to conduct a hearing, and B. Harder was picked to provide assistance
while the plaintiff was confined in [the Special Housing Unit (“SHU”)].” 5 Id. Harder “was

4

The defendants argue that Amaker has waived review of much or all of the
R&R by failing to comply with United States District Court for the Western District of
New York Local Rule 72(b), which requires objections to an R&R by a magistrate judge
to “specifically identify the portions of the proposed findings and recommendations to
which objection is made.” Docket Item 88 at 2-3. But a “local rule imposing a
requirement of form must not be enforced in a way that causes a party to lose any right
because of a nonwillful failure to comply,” Fed. R. Civ. P. 83(a)(2), and “a court should
be particularly solicitous of pro se litigants who assert civil rights claims” as well as
“litigants who are incarcerated.” Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010).
The Court therefore excuses any noncompliance with Local Rule 72(b).
5

Under the “normal conditions of SHU confinement in New York,” a prisoner is
“placed in a solitary confinement cell, kept in his cell for 23 hours a day, permitted to
exercise in the prison yard for one hour a day . . . , limited to two showers a week, and
denied various privileges available to general population prisoners, such as the
opportunity to work and obtain out-of-cell schooling.” Colon v. Howard, 215 F.3d 227,
230 (2d Cir. 2000). “Visitors [are] permitted, but the frequency and duration [are] less
than in general population.” Id. “The number of books allowed in the cell [is] also
limited.” Id.
3

requested to get the misbehavior report of the other inmate who attacked plaintiff and
interview CO W. Rogoza,” but she “failed to provide this essential assistance.” Id. “In
direct contradiction she did not obtain any documents on behalf of the plaintiff.” Id. at 56.
Judge Schroeder construed the amended complaint to allege that defendant
Corrections Officer Harder was assigned to provide Amaker assistance in preparing for
the disciplinary hearing but failed to do so. Docket Item 79 at 12. He noted that New
York regulations call for inmates to be provided with assistance in preparing for
disciplinary hearings. Id. at 13. But he determined that those regulations do not create
a federally-protected due process right, and he therefore concluded that the claim
against Harder should be dismissed. Id.
In his objections, Amaker argues that Judge Schroeder erred in reading the
complaint: Judge Schroeder referred to CO Harder, but the complaint refers to “Ms. B.
Harder school teacher assigned as an assistant for the preparation for discipline
charges while the plaintiff was confined in SHU.” Docket Item 84 at 1. That alleged
error is of no moment.
But Amaker also objects because “[t]he Second Circuit has held that prison
officials have a constitutional obligation to provide substantive assistance to an inmate
in marshaling evidence and presenting a defense.” Id. (quoting Diaz v. Burns, 2015 WL
5167181, at *8 (W.D.N.Y. Sept. 3, 2015)). This Court agrees, and the complaint
therefore states a claim against defendant B. Harder for failure to provide the requested
assistance.

4

“Prison authorities have a constitutional obligation to provide assistance to an
inmate in marshaling evidence and presenting a defense when he is faced with
disciplinary charges.” Eng. v. Coughlin, 858 F.2d 889, 897 (2d Cir. 1988). “When the
inmate is disabled, either by being confined full-time to SHU or transferred from the
prison in which the incidents occurred, the duty of assistance is greater because the
inmate’s ability to help himself is reduced.” Id. “[F]or inmates disabled by confinement
in SHU, or transferred to another facility, the right to substantive assistance is an
obligation imposed by the Due Process Clause of the Fourteenth Amendment.” Id. at
898. Without limiting “the contours of the assistant’s obligations, such help certainly
should include gathering evidence, obtaining documents and relevant tapes, and
interviewing witnesses.” Id. “At a minimum, the assistant should perform the
investigatory tasks which the inmate, were he able, could perform for himself.” Id. “[A]n
assigned assistant who does nothing to assist a disabled prisoner—one who is
segregated from the general prison population—has failed to accord the prisoner his
limited constitutional due process right of assistance” and breaches her duty to assist
the prisoner. Id. 6

6Amaker’s

due process claim may proceed only if a liberty interest was infringed
as a result of the denial of due process at the hearing. Palmer v. Richards, 364 F.3d
60, 64 (2d Cir. 2004). “A prisoner’s liberty interest is implicated by prison discipline,
such as SHU confinement, only if the discipline ‘imposes an atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.’” Id. (quoting
Sandin v. Conner, 515 U.S. 472, 484 (1995)). The Second Circuit has established “the
following guidelines for use by district courts in determining whether a prisoner’s liberty
interest was infringed.” Id. “Where the plaintiff was confined for an intermediate
duration—between 101 and 305 days—‘development of a detailed record’ of the
conditions of the confinement relative to ordinary prison conditions is required.” Id. at
64-65 (quoting Colon v. Howard, 215 F.3d 227, 232 (2d Cir. 2000)). But a “confinement
longer than an intermediate one, and under ‘normal SHU conditions,’ is a ‘sufficient
departure from the ordinary incidents of prison life to require procedural due process
5

Here, according to the amended complaint, defendant B. Harder was assigned to
provide Amaker with assistance in connection with his disciplinary hearing. Amaker
was confined to the SHU and therefore could not fend for himself. Docket Item 29 at 5.
But B. Harder allegedly failed to “get the misbehavior report of the other inmate who
attacked plaintiff,” and she failed to “interview [CO] W. Rogoza” as well. Id. Indeed,
“she did not obtain any documents on behalf of the plaintiff.” Id. at 5-6 (emphasis
added).
Those facts create a reasonable inference that defendant B. Harder breached
her constitutional duty to assist Amaker in even the most basic ways, see Eng, 858 F.2d
at 898, and the plaintiffs’ claim against her survives the defendants’ motion to dismiss.
II.

DENIAL OF RELIGIOUS MEALS
After his release from SHU, Amaker was denied religious meals. Docket Item 29

at 6. More specifically, while he was confined at the Attica Correctional Facility, Amaker
was denied food on three occasions during the month of Ramadan. Id. at 6-7. Upon
being transferred from Great Meadow Correctional Facility to Southport Correctional
Facility, he again was denied meals during three days of Ramadan. Id. at 7. And when
he was transferred from Southport back to Attica, he was denied meals for eight days
during Ramadan. Id.

protections.’” Id. at 65 (quoting Colon, 215 F.3d at 231). Here, the plaintiffs allege that
Amaker served a total of 379 days of SHU. Docket Item 29 at 6. If all that time resulted
from this disciplinary hearing, then Amaker was entitled to hearing procedures that
conform to the requirements of due process, including those set forth in Eng. If not,
then the defendants may raise the liberty-interest issue in a motion for summary
judgment.
6

Judge Schroeder recommended dismissal of Amaker’s claim based on this
conduct because “isolated incidents involving the denial of religiously mandated food
are insufficient to support a First Amendment claim.” Docket Item 79 at 16. Amaker
objects, contending that the defendants’ conduct in denying him these meals indeed
states a First Amendment claim. Docket Item 84 at 2-3.
The amended complaint is entirely devoid of any allegations of any defendant’s
personal involvement in denying Amaker his religious meals. See Docket Item 29 at 67. “Having failed to allege, as [the plaintiffs] must, that these defendants were directly
and personally responsible for the purported unlawful conduct, their complaint is ‘fatally
defective’ on its face.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987)
(quoting Black v. United States, 534 F.2d 524, 527-28 (2d Cir. 1976)). For this reason,
this Court agrees with Judge Schroeder, and the free exercise claim for the denial of
Amaker’s religious meals is dismissed. 7
III.

INTERFERENCE WITH GRIEVANCES CLAIM AGAINST MCGINNIS,
BARTLETT, AND MCNAMARA
“During the months of July through October 17, 2005, McGinnis, Bartlett and

McNamara were allowing [the Inmate Grievance Resolution Committee (“IGRC”)]
supervisor to interfer[e] with the grievance proceeding and not file plaintiff’s grievance.”

7

Typically, “‘the court should not dismiss without granting leave to amend [a pro
se complaint] at least once when a liberal reading of the complaint gives any indication
that a valid claim might be stated.’” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795
(2d Cir. 1999) (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)). Here,
however, when Judge Arcara screened the initial complaint, the plaintiffs already were
given such leave and were instructed to allege in any amended complaint “as to each
defendant . . . how he or she was personally involved in the alleged constitutional
violation.” Docket Item 17 at 11.
7

Docket Item 29 at 9. “Ms. Bartlett and Ms. McNamara intentionally denied the plaintiff
certified return receipt mailing to the N.Y.S. Attorney General Office to gain jurisdiction
against the state in the Court of Claim.” Id. This injured Amaker when his claim was
dismissed and “rejected for failure to properly serve the Defendants.” Id. at 14.
Judge Schroeder recommended that the plaintiffs’ claim against Bartlett and
McNamara not be dismissed and proceed as a claim of denial of access to the courts.
Docket Item 79 at 22-23. But Judge Schroeder recommended that the claim against
McGinnis, Barlett, and McNamara for allowing the IGRC supervisor to interfere with
Amaker’s ability to file grievances be dismissed. He based that recommendation on his
conclusion that “inmate grievance programs created by state law are not required by the
Constitution, and consequently allegations that prison officials violated those
procedures do not give rise to a colorable Section 1983 claim.” Docket Item 79 at 23
(quoting Alvarao v. Westchester Cty, 22 F. Supp. 3d 208, 214 (S.D.N.Y. 2014)).
In his objections, Amaker challenges Judge Schroeder’s legal conclusion and
contends that, at least to some extent, inmate grievance programs are constitutionally
required, citing cases involving First Amendment retaliation claims. Docket Item 84 at 5
(quoting, e.g., Johnson v. Burges, 506 F. App’x 10, 12 (2d Cir. 2012)). But even if
Amaker were correct, the amended complaint alleges only that McGinnis, Bartlett, and
McNamara somehow “allow[ed]” an unidentified IGRC supervisor to interfere with his
claims. It does not suggest what that means or how they could “allow” this, nor does
Amaker explain any of that in his objections. The conduct that the complaint addresses
is that of the unidentified IGRC supervisor—not McGinnis, Bartlett, or McNamara.
Therefore, this Court accepts and adopts Judge Schroeder’s recommendation to

8

dismiss the claim that these three defendants allowed the IGRC supervisor to interfere
with Amaker’s grievances. Docket Item 79 at 23.
IV.

DENIAL OF VISITATION
The amended complaint alleges that defendants Attica Correctional Facility

Superintendent James Conway and Department of Corrections and Community
Supervision Acting Commissioner Anthony J. Annucci 8 denied Amaker the right to visit
with Grace Amaker for “entire years” in retaliation for complaints regarding his treatment
and the conditions of his confinement. Docket Item 29 at 12-13. The R&R
characterized that claim as asserting an absolute right to visitation and recommended
dismissing it because there is no such right. Docket Item 79 at 29. Amaker’s objections
argue that these claims “should proceed as clear violations against discrimination and
retaliation.” Docket Item 5-6.
“It is undisputed that retaliation by prison officials against an inmate for the filing
of a grievance can act as a deprivation of a constitutionally protected right.” Johnson v.
Eggersdorf, 8 F. App’x 140, 144 (2d Cir. 2001). “Ordinarily a plaintiff can survive a
motion to dismiss based on the pleadings so long as he has alleged facts, that if proven,
would support a cause of action.” Id. “However, because of the ‘ease with which claims
of retaliation may be fabricated, [courts] examine prisoners’ claims of retaliation with
skepticism and particular care.’” Id. (quoting Colon v. Coughlin, 58 F.3d 865, 872 (2d

8

Judge Schroeder observed that the amended complaint does not list Deputy
Commissioner Annucci (now Acting Commissioner Annucci) as a defendant in the
caption and that Annucci was not served with process. Docket Item 79 at 29. That
issue is addressed later in this order.
9

Cir. 1995)). “Because of the potential for abuse, ‘[courts] insist[] on a higher level of
detail in the pleadings.’” Id. (quoting Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987)).
In the Second Circuit,
prisoner retaliation claims [fall] into three categories: (1) “a retaliation claim
supported by specific and detailed factual allegations which amount to a
persuasive case ought usually to be pursued with full discovery;” (2) “a
complaint which alleges facts giving rise to a colorable suspicion of
retaliation[;] .... [s]uch a claim will support at least documentary discovery;”
(3) “a complaint which alleges retaliation in wholly conclusory terms may
safely be dismissed on the pleadings alone[;] .... [i]n such a case, the
prisoner has no factual basis for the claim other than an adverse
administrative decision and the costs of discovery should not be imposed
on defendants.”
Id. (quoting Flaherty v Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)). Liberally construed,
the amended complaint alleges that the defendants decided to deny Amaker’s visitation
rights at about the same time that he raised certain complaints about his conditions of
confinement. Docket Item 29 at 13. Therefore, this Court believes that the denial-ofvisitation-rights retaliation claim falls into the second category: it “alleges facts giving
rise to a colorable suspicion of retaliation” supporting “at least documentary discovery.”
Johnson, 8 F. App’x at 144. For that reason, this claim survives the defendants’ motion
to dismiss.
V.

HANDCUFF KEY
Grace Amaker assisted Amaker in filing complaints against the Commissioner

and the Deputy Commissioner while Amaker was incarcerated. Docket Item 29 at 1112. At about the time when the United States Department of Health and Human
Services was investigating Amaker’s complaints about the defendants—and when
Grace Amaker was complaining to defendant Goord about illegal religious
discrimination at Attica—defendant CO Hardin “place[ed] a fake handcuff key in her
10

change purse while clearing the metal detector at Clinton C.F.” Docket Item 29 at 12.
As a result, Amaker’s ability to visit with Grace Amaker was curtailed. See id.
Judge Schroeder recommended dismissing this claim. Docket Item 79 at 28. He
found that “Grace Amaker fails to plausibly allege any facts to suggest why her
complaints on Anthony Amaker’s behalf of religious discrimination at Attica would have
prompted CO Harden to plant a handcuff key in her change purse as she was
attempting to visit him at Clinton following his recent transfer to that facility for a court
appearance.” Id. at 28.
Amaker objects, contending that “[t]here is a genuine issue[] of material fact[] as
to whether [CO] Harden and other[s] maliciously set the plaintiff [presumably Grace
Amaker] up on false criminal charges.” Docket Item 84 at 7. 9 And he contends that,
contrary to Judge Schroeder’s findings, Hardin and other prison officials coordinated
with one another despite their location at different facilities. Id. at 6.
Although “[f]actual allegations must be enough to raise a right to relief above the
speculative level,” Bell Atlantic Corop. v. Twombly, 550 U.S. 544, 555 (2007) (quoting 5
C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.
2004)), when evaluating the complaint, a court must assume “that all the allegations in
the complaint are true (even if doubtful in fact).” Id. “Rule 12(b)(6) does not

9

The amended complaint also alleges that although Grace Amaker was
acquitted of the charges related to this incident, it “cost her excessive money for
defending herself and traveling for court.” Docket Item 29 at 12. Any claim to recover
the costs Grace Amaker incurred for defending criminal charges resulting from the
handcuff-key incident is personal to Grace Amaker, and Amaker therefore cannot
litigate it. See note 2, supra. Because the handcuff-key claim also involves an interest
personal to Amaker, however—that his ability to visit with Grace Amaker was
curtailed—he may address this issue on his own behalf and object to Judge
Schroeder’s recommendation to dismiss that claim.
11

countenance dismissals based on a judge’s disbelief of a complaint’s factual
allegations.” Id. at 556 (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
In contrast to wholly conclusory allegations, the allegations here are quite
specific: that Hardin placed a fake key in Grace Amaker’s purse. See Docket Item 29 at
12. Although the retaliatory allegations are somewhat less detailed, the plaintiffs
provide some detail regarding the event’s timeframe, alleging that it occurred at about
the time when Amaker was involved in a number of complaints and investigations
regarding the prison. For that reason, this First Amendment retaliation claim falls into
the second category of prisoner retaliation claims, see supra at 9—it “alleges facts
giving rise to a colorable suspicion of retaliation” supporting “at least documentary
discovery,” Johnson, 8 F. App’x at 144. The claim therefore survives the defendants’
motion to dismiss. 10
VI.

DEPRIVATION OF FOOD
Between October 20, 2005, and September 2006, defendant Randy James,

Deputy Superintendent at Attica Correctional Facility, encouraged corrections officers to
harass Amaker and prevent him from coming out of his cell for lunch and dinner.
Docket Item 29 at 15. Judge Schroeder recommended that this claim be dismissed.
Docket Item 79 at 26. According to the R&R, the Eighth Amendment entitles prisoners
to nutritionally adequate food, but the amended complaint does not allege that James
denied Amaker adequate food; instead, it alleges that James “encouraged other officers

10

Judge Schroeder observed that the amended complaint does not list CO
Hardin as a defendant in the caption and that he was not served with process. Docket
Item 79 at 28. This matter is addressed later in this order.
12

to harass plaintiff so as to prevent him from leaving his cell.” Id. (citing Docket Item 29
at 15). Judge Schroeder therefore found this conduct insufficient to state a claim under
the Eighth Amendment. Id. In his objections, Amaker argues that this was another
action taken in retaliation for filing grievances. Docket Item 84 at 7. Alternatively, he
argues that the defendants’ “actions violate the contemporary standards of decency.”
Id.
Analyzing this claim as one under the First Amendment for retaliation, this Court
believes that, at least as against defendant James, it falls into the third category: it
“alleges retaliation in wholly conclusory terms” and therefore “may safely be dismissed
on the pleadings alone.” Johnson, 8 F. App’x at 144. The amended complaint does not
allege that James actually took any direct action against Amaker but says only that
James “encouraged” others to harass him and includes no other specifics.
Furthermore, the amended complaint is far from clear regarding how James is
connected to the other officers who, in the same paragraph, for example, are alleged to
have limited Amaker’s time in the law library. See Docket Item 29 at 14-15. Therefore,
the First Amendment retaliation claim against James for encouraging officers to harass
Amaker is dismissed.
Amaker’s alternative argument is simply a disagreement with Judge Schroeder
over the application of Eighth Amendment jurisprudence to the alleged facts. See
Docket Item 84 at 7. For the reasons stated by Judge Schroeder in his R&R, this Court
reject’s Amaker’s alternative argument and agrees with Judge Schroeder that the
allegations are insufficient to state an Eighth Amendment claim.

13

VII.

RETALIATION ON THE PART OF DEFENDANT ZIMMERMAN
In his objections, Amaker argues that the R&R did not address the plaintiffs’

retaliation claims against defendant Zimmerman involving threats made by Zimmerman
and Sergeant Gavigan. Docket Item 84 at 4. The R&R indeed addresses the threats
made by “Sgt. Gavigan and CO Zimmerman.” Docket Item 79 at 19-20. But Amaker
contends that “[i]t is not [CO] Zimmerman, but Mr. Zimmerman who was involved in the
threats with the Sergeant Gavigan.” Docket Item 84 at 4.
Regardless of whether the particular defendant at issue is “Mr. Zimmerman” or
“CO Zimmerman,” Judge Schroeder addressed the underlying conduct of the person
identified as Zimmerman in the amended complaint. See Docket Item 29 at 10. For the
reasons stated in the R&R, this Court accepts Judge Schroeder’s recommendation and
dismisses this claim.
VIII.

CARRYING PROPERTY WHILE IN MECHANICAL RESTRAINTS
In February 2005, Southport Superintendent McGinnis and Deputy

Superintendent Chappius “had” CO Dhier, CO Seymore, and CO Parribelli make
Amaker “carry 6 dra[ft] bags of legal and personal property up the stairs while in full
restraint of handcuff and waist chain.” Docket Item 29 at 13. This was done even
though “the facility staff knew [Amaker] suffered from herniated discs in the lower back.”
Id. This caused Amaker to “hurt himself and cause[d] damage” to his “left arm nerves.”
Id. The pain lasted over six years and he has tested “positive [for] nerve damage from
the left shoulder to the hand.” Id. The prison provided no treatment for Amaker’s nerve

14

damage after those medical findings. 11 Id. After Amaker moved his “legal property into
his cell, these same officiers would dump his legal work product all over the bed and
floor.” Id.
The R&R analyzed this claim as an Eighth Amendment deliberate-indifferenceto-medical-needs claim. Docket Item 79 at 20. Judge Schroeder concluded that “[a]s
an objective matter . . . requiring an inmate encumbered by mechanical restraints to
carry his personal property between cells fails to approach the level of a constitutional
violation.” Id. at 21. Therefore, the R&R recommended that the Eighth Amendment
claim against CO Dhier, CO Symore, CO Parrabella, Superintendent McGinnis and
Deputy Superintendent Chappius be dismissed. Id. at 22.
Amaker objects, arguing primarily that he “should not have to wait until he
damaged his nerves in the fall before obtaining an injunction against the use of
handcuff[s] to transport[] property through the facility in Southport C.F.” Docket Item 84
at 9. But Amaker is no longer housed in the Southport Correctional Facility, see Docket
Item 90, so any request for an injunction is is moot. See Salahuddin v. Goord, 467 F.3d
263, 272 (2d Cir. 2006) (“In this circuit, an inmate’s transfer from one prison facility
generally moots claims for declaratory and injunctive relief against officials of that

11

If true, the claim that the prison provided no treatment for Amaker’s nerve
damage may raise Eighth Amendment concerns. But the claim still would fail for the
same reason that the denial-of-his-religious-meals claim fails. See supra at 6-7. The
plaintiffs’ amended complaint is entirely devoid of any allegations of any defendant’s
personal involvement in denying Amaker nerve-damage treatment. See Docket Item 29
at 13. “Having failed to allege, as they must, that these defendants were directly and
personally responsible for the purported unlawful conduct, their complaint is ‘fatally
defective’ on its face.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987)
(quoting Black v. United States, 534 F.2d 524, 527-28 (2d Cir. 1976)). For this reason,
any Eighth Amendment claim raised by the allegations that Amaker was not provided
with treatment for his nerve damage is dismissed.
15

facility.”); Pugh v. Goord, 571 F. Supp. 2d 477, 490 (S.D.N.Y. 2008). And insofar as
Amaker seeks damages, this Court agrees with Judge Schroeder that having an inmate
carry his belongings while restrained, on the facts alleged, does not state an Eighth
Amendment claim.
IX.

DENIAL OF ACCESS TO NATION OF ISLAM CALL OUTS
The amended complaint alleges that since January 2006, Amaker has been

targeted by CO Judasz, CO Schuck, CO Hays, and CO Christensen upon going to
Nation of Islam Services. Docket Item 29 at 10. They would “not open the plaintiff’s cell
for [Nation of Islam] call outs of which he was on for service on Tuesdays.” Id. at 11.
The R&R analyzed this claim as a First Amendment retaliation claim. Docket
Item 79 at 25-26. Judge Schroder found that the amended complaint failed to allege a
sufficient causal connection between the protected activity—being denied call outs—
and either a complaint Amaker filed with the U.S. Department of Health or his refusal to
abide by the Department of Correctional Services’ grooming policy. Id. Therefore, the
R&R recommended dismissing this claim against CO Judasz, CO Schuck, CO Hays,
and CO Christensen.
Amaker objects, arguing that this claim is not a First Amendment retaliation claim
but instead a straight free exercise claim. See Docket Item 84 at 9. He alleges that the
defendants simply would not open the door to his cell and permit him to attend religious
services. Docket Item 29 at 10. If true, Amaker’s claim certainly is sufficient to make
the threshold showing “that the disputed conduct substantially burdens his sincerely

16

held religious beliefs,” Salahuddin, 467 F.3d at 274-75, 12 regardless of whether it was in
retaliation for exercising his right to free speech by filing a complaint or taking some
other constitutionally protected action. Therefore, the free exercise claim against these
four defendants survives the defendants’ motion to dismiss.
X.

DEFENSE OF FAILURE TO EXHAUST ADMINISTRATIVE RESOURCES
Amaker argues that this Court should bar the defendants from asserting a failure-

to-exhaust defense “because they are unwilling to provide relief.” Docket Item 84 at 3.
He bases his request on Judge Schroeder’s determination that inmate grievance
programs are created by state law and not necessarily required by the Constitution.
Amaker’s request makes no sense. The Prison Litigation Reform Act of 1995
“mandates that an inmate exhaust ‘such administrative remedies as are available’
before bringing suit to challenge prison conditions.” Ross v. Blake, 136 S. Ct. 1850,
1854-55 (2016) (quoting 42 U.S.C. § 1997e(a)). Thus, whether or not grievance
programs are required by the Constitution has no bearing on whether or not Amaker
exhausted available administrative remedies provided at the discretion of New York
State.

12

“The prisoner must show at the threshold that the disputed conduct
substantially burdens his sincerely held religious beliefs.” Salahuddin v. Goord, 467
F.3d 263, 274-75 (2d Cir. 2006). “The defendants then bear the relatively limited
burden of identifying the legitimate penological interests that justify the impinging
conduct; ‘the burden remains with the prisoner to show that these articulated concerns
were irrational.’” Id. (quoting Ford v. McGinnis, 352 F.3d 582, 595 (2d Cir. 2003)).
17

XI.

RECOMMENDATIONS WITHOUT OBJECTIONS
This Court has reviewed the R&R’s other recommendations de novo. Based on

that review, the Court accepts and adopts Judge Schroeder’s recommendations
regarding the plaintiffs’ claims that are otherwise unaddressed in this order.
MOTION FOR LEAVE TO AMEND
The R&R also recommended dismissing the complaint against Annucci in part
because “neither the original complaint . . . nor the amended complaint . . . list Deputy
Commissioner Annucci as a defendant in the caption and he was not served with
process.” Docket Item 79 at 29. The same is true for CO Hardin. Id. at 28. In his
objections, Amaker requests leave to amend his complaint “to include Mr. Annucci and
all others involved in the intentional deprivation of visitation,” including CO Hardin.
Docket Item 84 at 6-7.
Federal Rule of Civil Procedure 10(a) provides that “[e]very pleading must have a
caption” and that the “title of the complaint must name all parties.” But “Rule 10 is, of
course, subject to the command ‘never to exalt form over substance.’” Shariff v. United
States, 689 F. App’x 18, 19 (2d Cir. 2017) (summary order) (quoting Phillips v. Girdich,
408 F.3d 123, 128 (2d Cir. 2005)). The Second Circuit “excuse[s] technical pleading
irregularities as long as they neither undermine the purpose of notice pleading nor
prejudice the adverse party.” Id. (quoting Phillips, 408 F.3d at 128).
Here, read fairly and liberally, the amended complaint already raises the claims
that Amaker wants to assert against Annucci and Hardin. Docket Item 29 at 12-13.
Therefore, the plaintiffs need not be granted leave to amend the amended complaint to
add these defendants because the amended complaint already asserts claims against
18

them. 13 Because those defendants have not yet been served, however, the United
States Marshal shall serve CO Hardin and Deputy Commissioner Annucci unless
counsel for the other defendants accepts service on their behalf. And in order to
synchronize both form and substance, the Clerk of Court is directed to amend the
caption of this action to include Hardin and Anucci as defendants.
On the other hand, Amaker’s request to amend the complaint to add “all other[s]
involved in the intentional deprivation of visitation,” Docket Item 84 at 6-7, is denied.

13

See Sheridan v. United States, 214 F. App’x 857, 859 (10th Cir. 2007) (district
court erred by construing pro se plaintiff’s “complaint strictly according to its caption”
instead of looking to body of the complaint); Trackwell v. U.S. Government, 472 F.3d
1242, 1243-44 (10th Cir. 2007) (“in a pro se case when the plaintiff names the wrong
defendant in the caption or when the identity of the defendants is unclear from the
caption, courts may look to the body of the complaint to determine who the intended
and proper defendants are”); Marsh v. Butler Cty., Ala., 268 F.3d 1014, 1023 n.4 (11th
Cir. 2001) (“The caption is chiefly for the court’s administrative convenience.”);
Greenwood v. Ross, 778 F.2d 448, 451-52 (8th Cir. 1985) (“caption [is] not controlling in
determining the parties”); Morales v. Stanton, 2019 WL 183901, at *3 (M.D. Pa. Jan. 14,
2019) (quoting Trackwell, 472 F.3d at 1243-44) (“because pro se pleadings are to be
construed liberally, courts will often ‘look to the body of the complaint to determine who
the intended and proper defendants are’”); Brown v. Peoples Sec. Ins., 158 F.R.D. 350,
352 (E.D. Pa. 1994) (“Although [pro se] Plaintiffs failed to name [a defendant] as a party
in the caption of the complaint, the caption is usually not considered a part of the
pleader’s statement of claim and is not determinative as to the parties to the action.”);
see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (quoting
Boykin v. KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008)) (reversing dismissal of pro se
complaint where district court failed to obey directive that “dismissal of a pro se claim as
insufficiently pleaded is appropriate only in the most unsustainable of cases” and
providing that the district court “should have afforded plaintiff wider latitude in pressing
her claims”); Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (affirming
dismissal of complaint for failure to comply with Rule 10(a) because “the district court
actually tried alternatives before dismissing the case” by “allow[ing the plaintiff time] in
which to amend his complaint to bring it into compliance with Rule 10(a)”) (emphasis in
original); but see Herzog v. Nebraska, 2010 WL 1740602, at *1 n.1 (D. Neb. Apr. 28,
2010) (determining that eleven individuals referenced in complaint but not in caption are
not defendants because of Rule 10(a)); Harris v. Auxilium Pharm., Inc., 664 F. Supp. 2d
711, 722 (S.D. Tex. 2009) (quoting Jones v. Parmley, 2005 WL 928666, at *1 (N.D.N.Y.
(Apr. 20, 2005) (“[A] party that is not named in the caption of an amended complaint is
not a party to the action.”).
19

That request is simply too vague. Amaker does not provide any information about the
identity of any new potential defendants who have not already been identified.
Moreover, a motion to amend a complaint may be denied after the “repeated failure to
cure deficiencies by amendments previously allowed.” Foman v. Davis, 371 U.S. 178,
182 (1962). In this case, several years ago, the plaintiffs were given an opportunity to
amend the complaint and directed to “allege, as to each defendant, supervisory official
or not, how he or she was personally involved in the alleged violation.” Docket Item 17
at 11 (emphasis in original). Therefore, Amaker’s motion for leave to amend the
complaint again is denied.
CONCLUSION
For the reasons stated above and in the R&R, the defendants' motions to
dismiss, Docket Items 41, 58, and 68, are GRANTED in part and DENIED in part,
consistent with the R&R and this order. The Clerk of Court is directed to amend the
caption of this action to include Hardin and Annucci as defendants. The case is referred
back to Judge Schroeder for further proceedings consistent with Judge Arcara’s referral
order of May 6, 2010, Docket Item 23.
SO ORDERED.

Dated:

March 5, 2019
Buffalo, New York

s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
20