McFadden v. Annucci et al

Filing 107

DECISION & ORDER granting in part and denying in part 80 Motion to Amend or Correct; granting in part and denying in part 85 Motion; denying 90 Motion to Substitute Party; granting in part and denying in part 98 Motion to Compel. SO OR DERED. Signed by Hon. Frank P. Geraci, Jr. on 9/14/21. Decision & Order and NEF mailed to pro se Plaintiff. (BJJ)-CLERK TO FOLLOW UP-The Clerk shall terminate defendants, add defendants, and amend the caption as set forth in the Order section of the Decision & Order.

Case 6:16-cv-06105-FPG Document 107 Filed 09/14/21 Page 1 of 46

PS

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
REGINALD GHAFFAAR MCFADDEN,
Plaintiff,
-v-

16-CV-06105 FPG

ANTHONY ANNUCCI, JR., et al.,

DECISION AND ORDER

Defendants.
___________________________________
Presently before the Court are pro se Plaintiff Reginald Ghaffaar McFadden’s (“Plaintiff”)
Motions (1) to Amend and File the Fourth Amended Complaint, ECF No. 80, 1 (2) for
Miscellaneous Relief, ECF No. 85, (3) to Substitute Parties and add a Supplemental Pleading, ECF
No. 90, and (4) to Compel Defendants and/or Their Counsel to Provide Addresses at which certain
Defendants can be served, ECF No. 98.

Defendants filed an Attorney Declaration and

Memorandum of Law in opposition to the Motions to file the FAC and substitute parties, ECF No.
94 (“McKay Dec.”) and 94-1 (“Defendants MOL”), and Plaintiff filed two replies in support of
his Motions, ECF Nos. 95, 96. For the following reasons, the Motions to Amend, ECF No. 80,
Compel Addresses, ECF No. 98, and for Miscellaneous Relief, ECF No. 85, are GRANTED IN
PART and DENIED IN PART, and the Motion to Substitute Parties and add a Supplemental
Pleading, ECF No. 90, is DENIED.

1

Plaintiff filed the “Fourth” Amended Complaint (“FAC”) prior to filing the Motion to Amend. ECF No. 71.

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DISCUSSION
I.

Procedural Background
This case has a long and complicated procedural history and is summarized herein to the

extent necessary for the Motions presently before the Court. Plaintiff, a prisoner in the custody of
the New York State Department of Corrections and Community Supervision (“DOCCS”) and
currently incarcerated at the Attica Correctional Facility (“Attica”), first filed this action in the
United States District Court for the Northern District of New York seeking relief under 42 U.S.C.
§ 1983 and the Americans with Disabilities Act (“ADA”). ECF No. 1. Plaintiff alleged, among
other things, that prison officials at Attica denied him Hepatitis-C (“Hep-C”) treatment. He then
filed an Amended Complaint (the “First Amended Complaint”) that included events that occurred
at Auburn and Southport Correctional Facilities (“Auburn” and “Southport,” respectively) and
asserted claims of retaliation and the denial of “essential heart medication” upon his transfer to
Southport. ECF No. 7 at 11. The Northern District of New York made a preliminary finding that
Plaintiff had satisfied the “imminent danger of serious physical injury” exception to the “three
strikes” rule, 28 U.S.C. § 1915(g), and granted Plaintiff permission to proceed in forma pauperis
(“IFP”). It then severed the claims based on events that occurred at Attica and Southport and
transferred them to this District. ECF No. 12 at 10-13.
This Court screened the First Amended Complaint under 28 U.S.C. §§ 1915(e)(2)(B) and
1915, ECF No. 17, and dismissed several claims with prejudice, granted Plaintiff leave to amend
several claims and found that other claims could proceed to service upon the filing and screening
of a second amended complaint. ECF No. 17. Plaintiff later filed a Second and Third Amended
Complaint (“TAC”), ECF Nos. 18, 29.

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The TAC—the current operative pleading—consists of 57 pages and over 140 separate
paragraphs. ECF No. 29. It asserts constitutional violations dating back to 2011 and sets forth
allegations related to or raised in over 150 grievances filed between 2012 and the original filing of
this action (2015). ECF No. 29. This Court screened the TAC and dismissed with prejudice the
claims that Plaintiff had previously been granted leave to amend 2 and directed service of the
Summons and TAC against Defendants Deputy Superintendent Joseph Noeth, Inmate Assistant R.
Roemesser, and Correctional Officer (“CO”) Eric Schuessler, regarding only two claims:
retaliation (against Schuessler) and a violation of procedural due process in relation to a
disciplinary hearing (against Noeth and Roemesser). ECF No. 40 at 3-11.
After service of the TAC, these Defendants filed a Motion to Revoke Plaintiff’s IFP Status
and Dismiss the TAC. ECF No. 48. The Court granted Defendants’ Motion to Revoke Plaintiff’s
IFP status on the basis that Plaintiff did not sufficiently allege imminent danger of serious physical
injury, conditionally dismissed the TAC if Plaintiff did not pay the filing and administrative fees,
and provided Plaintiff 30 days to pay these fees. ECF No. 57. Plaintiff filed a Notice of Appeal
and the United States Court of Appeals for the Second Circuit vacated the Court’s Order revoking
Plaintiff’s IFP status. The Second Circuit also vacated and remanded the Court’s prior sua sponte
dismissals, see 28 U.S.C. §§ 1915(e)(2)(ii) and 1915A, of the following four claims: (1) Eighth
Amendment claim that Defendants did not provide adequate medical treatment for Plaintiff’s
Hepatitis C; (2) Eighth Amendment and ADA claims that Defendants failed to provide Plaintiff
hearing aids; (3) Eighth Amendment conditions of confinement claim; and (4) First Amendment
interference with mail claim. ECF No. 61.

The Court dismissed the following claims finding that they failed to state claims upon which relief can be granted:
(1) denial of medical care and unlawful use of mental health status, denial of medications, and “torture like”
conditions; (2) denial of hearing aids; denial of confidentiality in legal mail; and (3) cruel and unusual conditions of
confinement. ECF 40 at 3-9.

2

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Following remand, the Court granted Plaintiff leave to proceed IFP, reinstated the four
claims set forth above and some of the Defendants previously terminated from this action, and
directed that the TAC proceed to service on the following claims only: (1) Eighth Amendment
claim for inadequate Hep-C treatment against Defendants James Rao, Deborah Graf, Debra
Bonning, S. Michalek, Alice Schunk, Dale Artus, Carl J. Koenigsmann, and Peter Bogarak; (2)
Eighth Amendment and ADA claims for deprivation of auditory/hearing aids against Defendants
Rao, D. Pritchard, Michalek, Artus, Joseph Gullo, and Lucy Buther; (3) Eighth Amendment
conditions of confinement claim against Defendants Joseph Noeth, Eric Schuessler, and J.
Donahue; and (4) First Amendment claim for legal mail interference against Defendants L.
Chudzik and J. Cross. ECF No. 64 at 2. The Court also noted that the Fourteenth Amendment
due process claim against Defendants Noeth and Roemesser, ECF 29 at 34-38, and the First
Amendment retaliation claim against Defendant Schuessler, id. at 41-42, both of which the Court
previously found sufficient to proceed, remained pending and had been served on Noeth,
Roemesser, and Schuessler. ECF at 64 at 2-3.
On October 22, 2020, the Clerk’s Office issued summonses and the United States Marshals
Service proceeded to serve the summonses and TAC on the reinstated Defendants. On November
3, 2020, summonses were returned unexecuted as to Defendants J. Cross, Joseph Gullo, and D.
Pritchard with a letter from DOCCS stating that after a thorough and diligent search for these
Defendants it could not locate anyone with these names ever being employed at Attica. 3 ECF No.
67.

Plaintiff’s Motion for Miscellaneous Relief appears to request that Pritchard be dismissed but it is unclear whether
Plaintiff also requests that Cross be dismissed. ECF No. 85 at 2. Pritchard is not named as a Defendant in the FAC’s
Caption or “Parties to Action” section, but Cross is. ECF No. 71 at 2, 4-7.

3

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On November 10, 2020, Plaintiff filed the FAC, ECF No. 71, but with no corresponding
motion to amend the TAC. See Fed. R. Civ. P. 15(a)(2); Loc. R. Civ. P. 15. Plaintiff also filed a
Motion for Default Judgment. 4

ECF No. 72.

On December 4, 2020, several signed

Acknowledgments of Service of the Summons and Complaint by Mail under N.Y.C.L.R. § 312a(b) were filed on behalf of several Defendants. ECF No. 74. It appears that only three Defendants
did not return signed Acknowledgments: Cross, Gullo, and Pritchard. ECF Nos. 67, 74. Within
the next week, Plaintiff filed two additional Motions for Default Judgment, ECF Nos. 75, 77, and
a Motion to Strike, which was construed as a third Motion for Default Judgment, ECF No. 76. On
December 8, 2020, the Court denied Plaintiff’s Motions for the Appointment of Counsel, Summary
Judgment, and Default Judgment. ECF No. 78. The Court also noted that to the extent that
Plaintiff sought to file a FAC, he had to file a motion to amend. Id.
Plaintiff thereafter filed Motions for Reconsideration, to File the FAC, and for Summary
Judgment. ECF Nos. 79, 80, 82. The Court denied the Motions for Reconsideration and Summary
Judgment and directed Defendants to respond to the Motion to File the FAC. ECF No. 84. Plaintiff
later filed the additional Motions now before the Court. ECF Nos. 85, 90, 98. Defendants opposed
the Motions to Amend and Substitute Parties. ECF Nos. 94, 94-1. Plaintiff filed two replies. ECF
Nos. 95, 96. On April 23, 2021, the Court issued a Text Order stating that it would address the
Motion to Compel Addresses when it addressed the other pending Motions and directing the
parties not to file any additional motions or requests for relief, except motions for preliminary or
emergency injunctive relief, until the pending Motions were decided. 5
Plaintiff had previously filed Motions for Appointment of Counsel and Partial Summary Judgment. ECF Nos. 69,
70.

4

Despite this Order, Plaintiff filed a Motion to Appoint Counsel on the basis that he would not have access to legal
materials during upcoming medical treatment. ECF No. 100. The Court denied the Motion without prejudice because,
based on the pending motions, there was nothing Plaintiff needed to do at the time. ECF No. 100. The Court also
again directed Plaintiff not to file additional motions. Id. Again eschewing the Court’s directive, Plaintiff then filed

5

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II.

Plaintiff’s Motions
Despite some very confusing language and pleading, the Motions appear, at least on their

face, to assume that the current operative pleading is the FAC. 6 For example, the Motion to Amend
notes that Plaintiff is dropping certain Defendants, seeking to replace certain Defendants who have
been replaced by successors, see Fed. R. Civ. 25(d), “correct[ing the] identity [and] time frame”
when certain defendants (e.g., Annucci) knew of the alleged constitutional violations, and adding
additional defendants (“third parties”). ECF No. 80 at 1-5. Plaintiff also states that the FAC
“restricts the violation from August 1-August 3, 2012, upon [his] arrival” at Attica from Southport,
leaving out Defendant Pritchard. Id. at 4. However, as Defendants contend, Plaintiff does seek
to assert additional or new claims and defendants to this action, some that arose after August 1-3,
2012, and some that also are raised in another action pending in this Court, McFadden v.
Koenigsmann, 18-CV-06684 FPG (“the other action”).
Plaintiff argues that he should have the opportunity to file the FAC because, upon remand,
rather than “passing on the merits” of the TAC or allowing him to file an amended complaint as it
permitted in the other action, which was similarly remanded by the Second Circuit, see 18-CV06684 FPG, ECF No. 13 (Mandate), the Court simply permitted the four claims the Second Circuit
found had been improperly dismissed and the two claims previously found sufficient in the TAC
to move forward. ECF No. 95 at 2 and 96 at 2-3 (Plaintiff’s Replies); ECF No. 64 at 1-3. Plaintiff
is correct that the Court did not rule on the merits of Defendants’ Motion to Dismiss the TAC
because it revoked Plaintiff’s IFP status and denied the Motion to Dismiss the TAC without
a Writ of Mandamus with the Second Circuit seeking the appointment of counsel, which was denied on May 21, 2021
(Mandate issued on July 20, 2021). ECF No. 102. On July 26, 2021, Plaintiff filed a letter requesting the appointment
of counsel due to current health issues, ECF No. 103, which the Court denied, again, because based on the pending
motions there was no need for any further action by Plaintiff at that time. ECF No. 104.
Because the Motions to Substitute and for Miscellaneous Relief are for the most part subsumed within the Motion
to Amend, the Court considers them, in effect, as one Motion to Amend.

6

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prejudice, but he is incorrect in asserting that the Court did not pass on the merits of the TAC.
Prior to the filing of Defendants’ Motion to Dismiss, the Court screened the TAC under 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A and dismissed all but two claims—viz., the due process claim against
Defendants Noeth and Roemesser, and the retaliation claim against Schuessler. ECF No. 40 at 10.
The Second Circuit reinstated some, but not all, of the claims the Court had dismissed in that same
Order. ECF No. 61.
The Motion for Miscellaneous Relief, which does little more than further confuse which
claims are pled in the FAC and against whom, states that Plaintiff is dismissing certain Defendants,
such as Pritchard, and replacing certain Defendants with others who have succeeded the original
Defendants in their positions since the filing of this action: Dr. Rao with Dr. Williams, Chief
Medical Officers at Attica; Fonda with Maher, Directors, Office of Special Investigation; and Dr.
Koenigsmann with Dr. Morley, Chief Medical Officer, DOCCS. ECF No. 85. 7 The Motion to
Substitute Parties notes that Plaintiff is seeking to replace, pursuant to Fed. R. Civ. P. 25(d),
Defendants Noeth with Superintendent Jane Doe #1 and J. Clinton with Deputy Superintendent of
Programs John Doe #1; and that he is seeking to add a supplemental claim under Fed. R. Civ. P.
15(d) against new Defendants Deputy Superintendent of Programs C. Rossi and Mail Room

The Motion also refers to Fed. R. Civ. P. 42 and appears to seek consolidation of some of the claims asserted in the
FAC with those asserted in the other action. Plaintiff states that he filed the other action after he faced “all sort[s] of
obstructions in the for[m] of abuse of authority by Defendants” between 2015 and 2017, “which meant, correct names,
titles, etc. of defendants were still on-going . . .detailing some of the same actions, that were continue/on-going” and
replacing the names and titles of some Defendants. ECF No. 85 at 1, 2. Plaintiff continues that rather that directing
Plaintiff to file an amended complaint in this action after it was remanded—something the Court had directed in the
other action—to add claims the Court never addressed when it revoked Plaintiff’s IFP status, the Court simply directed
Defendants to respond to the TAC. Id. at 2.

7

The Court is not able to discern which claims are the same in the FAC and the Second Amended Complaint in the
other action, 18-CV-6684 FPG, ECF No. 47, or whether the two actions should be consolidated. Because the Second
Amended Complaint in the other action currently is subject to a motion to dismiss, id., ECF No. 49, and because of
the uncertainty regarding which claims duplicative, the Court denies without prejudice any request for consolidation.
The parties are encouraged to discuss consolidation or, at least, what claims may still overlap after this Order and, if
possible, enter a stipulation streamlining these two actions.

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Supervisor Chudzik, alleging that they interfered with Plaintiff’s mail on November 20, 2020 and
denied him access to courts. ECF No. 90. This Motion attaches a “Supplemental Pleading[].” Id.
While noting that Plaintiff may claim that he is aiming to present one final operative
pleading and that the FAC is intended primarily to correct things that have occurred since the
commencement of this action back in 2015 and replace certain Defendants with others who
succeeded them, the Court recognizes that the FAC does more than that. It appears to add
additional claims not pleaded previously, and add Defendants not previously sued. See, e.g., ECF
80 at 1 (“adding third parties;” “it is important that this Court knows all the essential facts, to[] to
understand the malice and forethought [sic] to cause Plaintiff’s death or severe mental distress, in
order to silen[ce] him about the . . . murder, whom Plaintiff is responsible, but took a deal to remain
silen[t]” on that murder when he pleaded guilty to other murders); McKay Dec., ECF No. 94, Exs.
3-4 at 103-05 (“Charts” prepared comparing claims asserted and defendants named in the TAC
vis-à-vis those claims asserted and defendants named and/or added in the FAC). The FAC also
appears to add additional claims against Defendants who were named in the TAC and served
previously but only in relation to one of the six claims currently pending.

Defendants’

memorandum of law states that Plaintiff “is seeking to more than double the [number] of claims
and defendants in this case.” ECF No. 94-1 at 6.
The TAC and FAC presented by Plaintiff, as well as his Motions, are at times difficult to
understand and illogical and add to the confusion of trying to compare one amended complaint
(TAC) with the other (FAC). As a result, it is difficult to determine what claims have previously
been directed to proceed to service and against whom, ECF No. ECF 64 at 2, and what claims may
simply be amended claims, as opposed to new or supplemental claims. The Charts prepared by
Defendants’ counsel lay out the differences between the two amended pleadings and attempt to

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delineate (1) what claims in the TAC remain in the FAC and have been served and against what
Defendants, (2) what claims are asserted in the FAC, and which of those claims are either preexisting or new, and (3) what Defendants are either new or pre-existing but added to a different or
new claim. ECF No. 94. at 103-05. Plaintiff does not appear to argue with the accuracy of these
two Charts and argues that he should be permitted leave to file and serve the FAC. ECF Nos. 95,
96.
III.

Defendants’ Opposition to Motions
A.

Motion to Amend

Defendants oppose the Motion to Amend on several grounds. ECF Nos. 94, 94-1. Initially,
Defendants argue that Plaintiff’s assertions that his FAC will streamline or simplify the litigation
are simply not true but, rather, the FAC will double the number of claims and defendants. ECF
No. 94-1 at 5-6. Defendants claim the FAC seeks to add seven more claims and twenty additional
defendants. ECF No. 94-1 at 6; ECF No. 94,, Ex. 4 at 105 (Chart). Defendants also assert that the
FAC addresses events as far back as 1995 and at times “resembles a stream of consciousness,
intermingling different claims and disregarding the headings that appear therein.” 8 ECF No. 94-1
at 6. Plaintiff “again strings together allegations from hundreds of grievances, and it is unclear
how many were already cited in the TAC.” Id.
Defendants then submit that the Motion to Amend should be denied based on the standards
established under Fed. R. Civ. P. 15(a) and (d). For example, Defendants claim, inter alia, that
Plaintiff violated Loc. R. Civ. P. 15(a) when he did not attach the proposed FAC to the Motion to
Amend and the FAC was not a “complete pleading superseding the prior pleading” and

Plaintiff’s papers in this and the other action are generally confusing and difficult to follow. Although he is an
experienced pro se litigator, Plaintiff nonetheless is pro se and entitled to “special solicitude.” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks omitted).
8

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incorporates by reference portions of the TAC. ECF No. 94-1 at 8. Defendants assert that the
FAC does not clearly delineate what new claims are being added and what claims have changed
between the FAC and TAC. 9 The FAC reorganizes and “mostly re-writes” the six claims from the
TAC currently pending and served on Defendants thereby preventing a paragraph-by-paragraph
comparison of the TAC and FAC. Further, the “new” eighth cause of action mixes Plaintiff’s
denial of Hep-C treatment claim with his eyeglasses claim; the former was reinstated by the Second
Circuit and served, and the later was dismissed by the Court initially and not raised on appeal. Id.
at 8-9. The other seven or so new claims “intermingle facts involving [the] original claims, such
that is difficult to decipher the differences between causes of action.” Id. Defendants assert that
after six years of litigation and the number of amended complaints filed already, if Plaintiff wishes
to add new claims and defendants, he should be required to file a separate action.
Defendants also oppose the Motion because of delay and prejudice. They assert, among
other things, that this case has been pending for six years with no discovery to date, that Plaintiff
did not give any indication of his intention to file the FAC until he filed it without a motion more
than three years after the TAC was filed, 10 and that he now seeks to add several new claims and
defendants. Id. at 10. Some of the underlying events allegedly occurred as far back as 2010 and
2011, or earlier, and the first time any of the Defendants were aware of this action was in July
2018, when Noeth, Roemesser, and Schussler were served with the TAC. The four reinstated

Loc. R. Civ. P. 15(b) provides that, “[Unless the movant is proceeding pro se, the amendment(s) or supplement[s]
to the original pleading shall be identified in the proposed pleading through the use of a work processing ‘redline’
function or other similar markings that are visible in both electronic and paper format.” Thus, there is no requirement
that Plaintiff delineate the differences between the TAC and FAC.

9

The FAC was filed within three weeks of issuance of the Second Circuit’s Mandate and the Motion to Amend was
filed within six weeks of the Mandate. ECF Nos. 61, 71.

10

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claims and Defendants were not served until November 2020. 11 Id. Defendants claim the Motion
to Amend places them in an “unworkable situation” because the FAC cites hundreds of grievances
and it is “impossible” to determine what grievances were previously cited in the TAC. Plaintiff
does not attempt to clarify this “and it would be unduly burdensome to have to obtain all the
grievances from the various grievance departments, only to later find out which ones may be
relevant (assuming they all still exist, which is almost certainly not the case since some involve
events dating back ten years.).” ECF No. 49-1 at 11. DOCCS currently retains grievances for
four years, plus the current year, meaning it only maintains grievances dating back to March 2016.
Id. at 11 (citing DOCCS Directive No. 2011). Plaintiff’s claims often do not identify specific
dates, names, and conduct allegedly engaged in by each Defendant, and “under the circumstances,
depositions and interrogatories will be necessary just to understand Plaintiff’s claims, and those
cannot commence until Plaintiff stops continuously amending his pleading.” Id. Defendants assert
they “have been and are continuing to be prejudiced by Plaintiff’s unexplained delays, and Plaintiff
should not be permitted to continue doing so.” Id.
Lastly, Defendants argue that the amendment should be denied because many of the claims
alleged in the FAC would not withstand a motion to dismiss and are thus futile. Id. at 12.
Defendants argue that: (1) the FAC makes no allegations against some of the new Defendants and
it contains duplicative claims that are raised in the other action, 12 ECF No. 49-1 at 12; (2) the FAC

While Defendants’ counsel’s office (New York State Attorney General) was first notified of this action on or about
September 30, 2016, when the Court’s Order screening the First Amended Complaint and dismissing all claims
asserted therein but with leave to amend, was forwarded to the Deputy Attorney General in Charge of the Buffalo
Regional Office, ECF No. 17, as is the Court’s practice, counsel could not have known or anticipated what claims
would proceed until, at the earliest, October 2020, when the Second Circuit reinstated four specific and previously
dismissed claims and vacated the revocation of Plaintiff’s IFP status. ECF No. 61.
11

As noted above, Plaintiff acknowledges that some of the claims in the FAC are also pled in the other action, 18CV-6684 FPG, ECF No. 47. See ECF No. 85; see also n.2, supra. For example, the FAC’s second cause of action is
brought against Defendants Bonning, Graf, Hawley, Noeth, Michalek, Schunk, Williams, and “M. ___ Z___, RN
#401,” and others. These Defendants are also named in the other action in a claim alleging inadequate medical

12

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seeks to revive claims dismissed previously or abandoned on appeal, id. at 13-15; (3) the claims
against some supervisory officials not personally involved the events or conduct fail to state claims
upon which relief can be granted, id. at 15-18; and (4) the FAC fails to state claims upon which
relief can be granted and “rewrites” claims previously permitted to proceed, id. at 18-23. 13
B.

Motion to Substitute Parties

The Motion to Substitute Parties seeks to substitute Defendants Superintendent Noeth and
Deputy Superintendent of Programs Clinton with their successors at Attica, Jane Doe
Superintendent and John Doe Deputy Superintendent of Programs.

It also seeks to add a

supplemental claim by way of a Supplemental Pleading attached to the Motion. ECF No. 90.
Defendants oppose the Motion on the grounds that: (1) Noeth and Clinton are sued in their
individual capacities and Fed. R. Civ. P. 25(d) provides for substitution of a governmental official
with his or her successor in office when the official is sued in his or her official capacity; and (2)
the supplemental access to courts claim against Chudzik and a new defendant, C. Rossi, based on
a failure to mail court documents in October and November 2020, is a “standalone” claim that can
be timely brought in a separate action. ECF No. 94-1 at 23-26.
Defendants are correct that Rule 25(d) speaks directly to substituting a governmental
official with his or her successor only when the official is named in their official capacity. From
what the Court can discern from the TAC and FAC, neither Noeth nor Clinton, the former
Superintendent and Deputy Superintendent of Attica, respectively, are sued in their official

treatment related to Plaintiff’s cardiology appointments, pacemaker issues, and injuries to his left ankle and left arm
in 2012. ECF No. 71 at 15-21; ECF No. 49 at 77-90 (Ex. 2 (Copy of Second Amended Complaint in 18-CV-6684
FPG)). The FAC’s fourth cause of action also is duplicative of an access to courts claim regarding law library access
asserted in the other action, 18-CV-6684 FPG. ECF No. 71 at 31-36; ECF No. 49 at 92-93 (Ex. 2 (Copy of Second
Amended Complaint in 18-CV-6684 FPG) at 20-21). Defendants submit that due to these duplicative claims,
permission to file the FAC should be denied. ECF No. 49-1 at 13.
13

Defendants’ MOL also specifically addresses what claims it argues are futile. ECF No. 94-1 at 12-23.

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capacity. Further, what is clear from both pleadings is that Plaintiff alleges that Noeth and Clinton
were personally involved in certain constitutional violations and Plaintiff seeks to hold these
Defendants responsible in their individual capacities and obtain monetary damages against them,
something he could not do if these Defendants were named in their official capacity. See Kentucky
v. Graham, 473 U.S. 159, 169 (1985) (“The Eleventh Amendment bars a damages action against
a State in federal court. This bar remains in effect when State officials are sued for damages in
their official capacity.”). The FAC does seek prospective injunctive relief against “Defendants”,
ECF No. 71 at 71, but neither Noeth nor Clinton appear to be sued in their official capacities in
the FAC. Accordingly, Plaintiff’s Motion to Substitute is denied.
This Motion also seeks to add as Defendants Rossi and Chudzik and add a new,
supplemental denial of access to courts/interference with mail claim that occurred on or about
November 20, 2020. This claim is wholly unrelated to any of the events or occurrences asserted
in the TAC and FAC. ECF No. 90 at 2 and 4-7 (Attached Proposed Supplemental Complaint).
Rule 15(d) of the Federal Rules of Civil Procedure permits supplemental pleadings (i.e., a pleading
setting forth any transaction, occurrence or event that happened after the date of the pleading
sought to be supplemented) with leave of court, but to allow Plaintiff to now add this entirely new
and unrelated claim to this action that could be brought in a separate and currently timely action
would not serve the interests of justice in any way and will simply add needless delay and, most
likely, additional discovery and/or motion practice. See Quaratino v. Tiffany & Co., 71 F.3d 58,
66 (2d Cir. 1995 (a supplemental pleading must allege facts “connect[ed] . . . to the original
pleading.”); see also Klos v. Haskell, 835 F. Supp. 710, 716 (W.D.N.Y. 1993) (denying the inmateplaintiff’s motion to supplement the complaint because the allegations set forth in the plaintiff’s

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supplemental pleading contained allegations arising from events that occurred “a year later at two
entirely different correctional facilities”).
Accordingly, Plaintiff’s Motion to Substitute Parties and file a Supplemental Pleading is
denied.
C.

Motion to Compel Addresses

Plaintiff asks the Court to compel Defendants to disclose addresses at which Defendants
Joseph Gullo, Eric Schussler, and Peter Bogarak (or Bogarski) can be served. ECF No. 98. He
claims that the United States Marshals Service’s attempts to serve Gullo and Bogarak were
unsuccessful and DOCCS falsely informed the Marshals Service that Gullo could not be located
as having ever been employed at Attica. Id. at 4. Plaintiff provides a copy of a DOCCS Audiology
Report, dated September 25, 2012, and Health Service System Request and Report of Consultation
in relation to audiology services, dated August 29, 2012. Id. at 5-6. The Audiology Report is
signed by a “Joseph Gullo” and the provider’s named noted on the Consultation Report is Joseph
Gullo-“Aud.” DOCCS is directed to review its records and determine if Gullo was an employee
of DOCCS at Attica or elsewhere, or if he was a private contractor, and, if that information can be
located, provide an address at which he can be served. See Valentin v. Dinkins, 121 F.3d 72, 77
(2d Cir. 1997).
As to Schussler, he returned a Notice and Acknowledgement of Receipt of Summons and
Complaint by Mail (“Acknowledgement of Service”), see N.Y. C.P.L.R. § 312-a(b), on November
25, 2020, ECF No. 74, and has thus been served.
As to Bogarak, no Acknowledgment of Service was returned, ECF No. 83, but he is not
named a Defendant in the FAC. Thus, to the extent Bogarak is not named a Defendant, the Motion
is moot.

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IV.

Analysis
The Court does not deny its concern regarding the “age” of this case and the fact that six

years after its filing, the operative pleading is still in flux and discovery has yet to commence.
There are legitimate reasons to deny the Motions, at least in part, and proceed simply with the six
claims in the TAC already served, e.g., delay, cf. Hall v. North Bellmore Union Free Sch. Dist.,
No. 08-CV-1999 (JS)(ARL), 2010 WL 1049280, at *2-3 (E.D.N.Y. Mar. 18, 2010) (“Generally,
courts will grant leave to amend when the moving party shows that it has not unduly delayed in
proposing the amendment, and provides a valid justification for any such delay[.] . . . [T]he adverse
party’s burden of undertaking discovery, standing alone, does not suffice to warrant denial of a
motion to amend a pleading.”) (internal citations omitted), but there are sufficient equally
legitimate reasons to grant, in whole or in part, leave to amend, which “should freely [be] giv[en]
when justice so requires.” Fed. R. Civ. P. 15(a).
“[A]n amended pleading may be filed pursuant to Rule 15(a) where the new allegations do
not unduly prejudice an opponent, are not the result of undue delay or bad faith, and are not futile.”
Warren v. Goord, No. 99 CV 296F, 2006 WL 1582385, at * 7 (W.D.N.Y. May 26, 2006). If the
underlying facts or circumstances relied upon by the party seeking leave to amend may be a proper
subject of relief, the party should be afforded the opportunity to test the claim on its merits. See
United States ex rel. Maritime Admin. v. Cont’l Ill. Nat’l Bank & Trust Co. of Chi., 889 F.2d 1248,
1254 (2d Cir. 1989). The Court again acknowledges its concern regarding the length of time this
case has been pending and there being no discovery to date, but it must also acknowledge that the
“delay” is not solely attributable to Plaintiff. This case was first transferred to this District upon
the Northern District’s severance of certain claims arising in this District, after which the Court
screened the First and Third Amended Complaints. ECF Nos. 12, 17, 40.

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Given this case’s long and complicated history, a brief summary of the procedural history
is again warranted. After service of the TAC, ECF No. 46, Defendants filed a Motion to Revoke
Plaintiff’s IFP Status, which this Court granted. ECF Nos. 57, 58. Plaintiff then appealed, and the
Court of Appeals vacated and remanded this case with directions to reinstate certain claims
previously dismissed. On remand, the Court reinstated those claims and directed that the TAC be
served on certain Defendants. ECF Nos. 61, 64. Plaintiff filed the FAC within three weeks of the
Court’s Order directing service of the FAC, ECF Nos. 64 ,71, and the Motion to Amend was filed
two weeks after the Court directed Plaintiff to file a Motion to Amend, approximately six weeks
after he filed the FAC. ECF Nos. 78, 80. Thus, much of the delay is not attributable to Plaintiff.
Further, while much of Plaintiff’s litigation conduct can be viewed as adding unnecessary layers
of difficulty, the Court does not find that he engaged in dilatory litigation tactics sufficient to deny
leave to amend.
Accordingly, at this time, the Court finds that the most efficient and equitable manner to
address leave to amend and the other Motions, while difficult and time-consuming for the parties
and the Court, is to review each claim asserted in the FAC and determine whether they are futile—
i.e., would they survive a Rule 12(b)(6) motion to dismiss, see Cortec Indus., Inc. v. Sum Holding
L.P., 949 F.2d 42, 50 (2d Cir.1991) (a district court abuses its discretion when it denies leave to
amend based on futility if an amendment would allow the complaint to survive)—taking into
account all issues raised by the parties, including, but not limited to, the repetitive nature of some
claims, whether certain claims have previously been dismissed and not reinstated on remand or
abandoned on appeal, whether the supplemental claims are related to the other claims, and whether
the claims against certain supervisory officials lack merit.

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A.

Motion to Amend: Standard of Review

Leave to amend may be denied if granting leave is futile because the proposed amended
complaint could not survive a motion to dismiss. Soroof Trading Dev. Co. v. GE Microgen, Inc.,
283 F.R.D. 142, 149 (S.D.N.Y. 2012) (citing Forman v. Davis, 371 U.S. 178, 182 (1962)).
“Futility . . . is a minimal standard to overcome-perhaps the lowest bar.” Innomed Labs, LLC v.
Alza Corp., No. 01-CV-8095, 2002 WL 1628943, at *2 (S.D.N.Y. July 23, 2002) (citing Sumitomo
Elec. Research Triangle, Inc. v. Corning Glass Works, 109 F.R.D. 627, 628 (S.D.N.Y. 1986)).
“[T]he court need not finally determine the merits of a proposed claim or defense, but merely
satisfy itself that it is colorable and not frivolous.” Sumitomo Elec. Research Triangle, Inc., 109
F.R.D. at 628. “Amendment would likely be futile if, for example, the claims the plaintiff sought
to add would be barred by the applicable statute of limitations.” Grace v. Rosenstock, 228 F.3d
40, 53 (2d Cir. 2000).
To survive a Rule 12(b)(6) motion to dismiss, the “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Although a complaint need only contain “a short and plain statement of the claim showing
that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), more than mere conclusions are
required. Indeed, “[w]hile legal conclusions can provide the framework of a complaint, they must
be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Dismissal is
appropriate only where plaintiffs have failed to provide some basis for the allegations that support
the elements of their claims. See Twombly, 550 U.S. at 570 (requiring “only enough facts to state
a claim to relief that is plausible on its face.”) “Simply stated, the question under Rule 12(b)(6) is
whether the facts supporting the claims, if established, create legally cognizable theories of

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recovery.” Cole-Hoover v. Shinseki, No. 10-CV-669, 2011 WL 1793256, at *3 (W.D.N.Y. May
9, 2011).
In addition, the pleadings of pro se litigants must be construed broadly and “interpreted to
raise the strongest arguments that they suggest.” Triestman v. Fed. Bur. of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (citation, internal quotation marks and emphasis omitted). “However, mere
conclusions of law or unwarranted deductions need not be accepted.” Alston v. Sebelius, No. 13CV-4537, 2014 WL 4374644, at *5 (E.D.N.Y. Sept. 2, 2014) (internal quotation marks omitted).
B.

The FAC’s Claims

Under the standards set forth above, the Court will review each claim set forth in the FAC
and determine whether it would survive a motion to dismiss under Rule 12(b)(6) and therefore
may proceed herein (and to service, if necessary). See Fed. R. Civ. P. 15(a)(3).
1.

Denial of Hep-C Treatment

Plaintiff alleges that upon his admission to DOCCS in 1995, he tested positive for
symptoms associated with Hep-C and in 2002 he was finally diagnosed with Hep-C. In April
2004, a doctor at Albany Medical Center approved Hep-C treatment for Plaintiff but “Defendants”
at the Clinton Correctional Facility (“Clinton”), Auburn Correctional Facility (“Auburn”) and
Attica refused to “re-offer” him Hep-C treatment. He was transferred to Attica on August 3, 2012.
and denied Hep-C treatment. He was refused Hep-C “prompting” in 2015. ECF No. 71 at 13-14.
Upon a review of Attica medical records regarding care and treatment of inmates with Hep-C,
Defendant Morley—who replaced Defendant Koenigsmann as DOCCS Chief Medical Officer
sometime after the initial Complaint in this matter (2015)—formulated a policy that refused to
treat most Hep-C inmates; less than two or three out of 200 inmates with Hep-C were provided

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treatment. Id. at 14. “Defendants” refused to provide Plaintiff Hep-C treatment prior to filing this
action in 2015. Treatment was not provided until January 2019. Id. at 14-15.
Following remand, the Court, as directed, reinstated this claim, and directed it be served
on Defendants Rao, Graf, Bonning, Michalek, Schunk, Artus, Koenigsmann, and Bogarski. 14 ECF
No. 64 at 2-3. Defendants oppose leave to amend this claim because Plaintiff has rewritten it,
“despite [it] having been found previously [to have] stated a colorable claim for medical deliberate
indifference,” and because it fails to “list[] a single defendant or what he or she did.” ECF No. 491 at 21. This claim does refer to both Defendants Morley and Koenigsmann, but not others
specifically, and alleges that they formulated a policy to deny to treatment to most Hep-C inmates
before 2015 and, at least, until 2019 when Plaintiff received treatment. ECF No. 71 at 14-15. The
Motion for Miscellaneous Relief, however, seeks to substitute Koenigsmann with Morley, and
Rao—Chief Medical Officer at Attica—with Williams. ECF No. 85. 15 Morley and Williams are
listed as Defendants but Koenigsmann and Rao are not. ECF No. 71 at 2, 4.
This raises the issue of whether, if leave to amend is granted on this claim—which it is—
Morley or Koenigsmann or both should be included as defendants on this claim. First, this claim
was reinstated by the Second Circuit and on remand ordered served on Koenigsmann and Rao.
The Court, therefore, will not dismiss Koenigsmann or Rao, especially since they were the doctors
alleged to have been involved in the denial of Hep-C treatment for much of the time alleged in all
prior pleadings. Further, Plaintiff alleges that, at some time between 2015 and 2019 after he
succeeded Koenigsmann, continued the denial of Hep-C treatment. The Second Circuit found that
“Bogarak” may be “Bogarski” but neither names are set forth either the FAC’s Caption or “Parties to Action[:]
Defendants” section. ECF at 2, 4-7. Accordingly, Bogarak or Bogarski, to the extent he is a defendant in the FAC, is
terminated from this action.
14

The Motion also seeks to replace Fonda with Maher but neither Fonda nor Maher are alleged to have been involved
in medical decisions at Attica and are alleged to have been Directors of the Office of Special Investigations, DOCCS,
ECF No. 71 at 4. ECF No. 85.
15

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the alleged denial of Hep-C treatment at Attica stated a claim upon which relief can be granted
and, while it did not address specifically this allegation against Morley, the substantive nature of
the claims is the same. Further, while Plaintiff is an experienced pro se litigant, he still is entitled
to have his pleading construed liberally. In light of this, the Court finds that both Koenigsmann
and Morley will be included as Defendants on this claim, as will both Rao and Williams.
As to leave to amend this claim, despite prior notice to Plaintiff that an amended complaint
completely replaces all prior complaints, see, e.g., ECF No. 12, 17, 28, the FAC’s failure to refer
to or name specific Defendants in this claim other than Morley and Koenigsmann, ECF No. 71 at
14-15, and the FAC’s failure to assert specific factual allegations against them, should not be fatal
to this claim. Again, the Second Circuit found that the Court had improperly dismissed this very
claim and directed that it be reinstated, along with three other claims. While Plaintiff is an
experienced pro se litigator, permitting him to plead himself out of a claim that the Second Circuit
found stated a claim upon which relief can be granted would run wholly counter to the wellaccepted doctrines that pro se pleadings must be construed liberally to raise the strongest
arguments they suggest and that pro se litigants are entitled to special solicitude. Further, most of
the Defendants sued on this claim initially—except Morley and Williams—have been served with
the TAC and are thus on notice of the allegations made against them and, therefore, there is no
delay or undue prejudice. See, e.g., Park B. Smith Inc. v. CHF Industries Inc., 811 F. Supp. 2d
766, 779 (S.D.N.Y. 2011) (“[M]ere delay, absent a showing of bad faith or undue prejudice, is not
enough for a district court to deny leave to amend.”).
Accordingly, this claim may proceed against Defendants Koenigsmann, Morley, Rao,
Williams, Graf, Bonning, Michalek, Schunk, and Artus. The Moton for Miscellaneous Relief, to
the extent is seeks to replace Koenigsmann with Morley, Rao with Williams, and Fonda with

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Maher is denied. ECF No. 85. Because Morley and Williams have not been served, the United
States Marshals Service is directed to serve the Summons and FAC on them. See Fed. R. Civ. P.
4(e); N.Y. C.P.L.R. § 312-a. Service of the FAC on Defendants who have appeared in this action
will be made by the Clerk of Court mailing a copy of FAC to their counsel. See Cavico v. Brown,
18-CV-6329W, 2020 WL 9460506, at *2 (W.D.N.Y. Sept. 3, 2020) (Wolford, J).
2.

Denial of Medical Care for Numerous Issues

This claim is cumbersome and disjointed. It begins with allegations that as far back in
2002, Plaintiff was diagnosed with a urinary tract infection and obstruction and that “Defendants”
at Clinton 16 delayed surgery to remove the obstruction in retaliation for past grievances. He did
not receive surgery until 2004. ECF No. 71 at 15. On July 20, 2012, after suffering pain from an
untreated urinary tract infection, he was treated at and released from the Upstate Medical Center
(“Upstate”) with instructions to follow up with urology in two weeks. While at Upstate, Plaintiff
overheard Auburn correctional officers lie in a scheme to reserve overtime pay. The officers
contacted DOCCS officials and claimed to be the family of a comatose inmate near death and
asked that the inmate be kept alive so they could continue to guard the inmate and collect overtime
pay. Id. at 18.
Plaintiff, soon after his release from Upstate, was transferred from Auburn to Southport on
August 2, 2012, where he was held overnight pending transfer to Attica with no medical care or
his daily medications. He was transferred to Attica on August 3. He was not provided with his
medications—including medication for his heart condition—from August 1 through August 7. He
also did not receive his eyeglasses and hearing aids. Id. at 16-18. On August 7, he was taken by

16

None of the Defendants named, ECF No. 71 at 1, 4-7, were or are employed at Clinton.

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ambulance to the Erie County Medical Center (“ECMC”) for a heart problem. He was discharged
two days later to be “prep[ped]” for insertion of a pace-maker device. Id. at 18.
Defendants Graf and Bonning, acting in concert with Defendant Noeth—who Annucci had
appointed as the hearing officer for three separate misbehavior reports issued against Plaintiff by
Auburn correctional officers in retaliation for his reporting the officers’ fraudulent behavior at
Upstate—had Plaintiff discharged from ECMC to Attica’s SHU and placed on suicide watch on a
“Special Unit” reserved for the most seriously mentally ill inmates. These inmates yelled and
kicked the iron gates all day, threw urine and feces, and left their waste in the “common shoulder,”
exposing Plaintiff to possible infection. Id. at 18-19. Plaintiff developed a foot and ear infection
from taking cold showers. Plaintiff complained to Defendants “M__Z__”, RN #401, Hawley, and
“__J__’’ 17 about his infections and was ignored. He had suffered from recurring ear infections
since 1999 causing a hearing loss which has required him to use hearing aids since 2001. Plaintiff’s
hearing aids and eyeglasses were destroyed by Attica correctional officers Defendants Reddia and
Bauer during cell searches to prevent him from overhearing and reporting misconduct like he had
when he was hospitalized at Upstate. Id. at 19-20.
Defendants Graf, Bonning, Schunk, Rao—who was replaced by Williams as Attica’s Chief
Medical Office at some time and whom Plaintiff seeks to replace with Williams, ECF No. 85—
and Michalek, failed to properly supervise Attica’s medical staff and denied Plaintiff (1) physical
therapy for his fractured left ankle, (2) access to an audiologist to fix his hearing aids, (3) follow
up cardiological and urology care, (4) medication during Ramadan, and (6) sick call requests. Id.
at 20.

17

__J__” is not named as a Defendants in the FAC. ECF No. 71 at 2, 4-7.

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Defendant Noeth found Plaintiff guilty on one or more of the misbehavior reports and
sentenced him to six months in SHU. According to Plaintiff, Noeth denied Plaintiff inmate
assistance, a timely disciplinary hearing, the right to call witnesses and present documentary
evidence, and a fair and unbiased hearing. Id. at 21. 18
Defendants oppose leave to amend and argue that this claim (1) is new, (2) is duplicative
or redundant of claims raised in the other action, 18-CV-06684 FPG, and (3) was not reinstated
and remanded by the Second Circuit or was previously dismissed in the Court’s prior Screening
Order of the TAC (ECF No. 40 at 3-5, 10) and abandoned on appeal. See ECF No. 49-1 at 12-14;
compare ECF No. 71 at 5-21, with 18-CV-06684, ECF No. 47 at 7-20. For these reasons, and the
fact that much of this claim is unintelligible, see Gonzales v. Wing, 167 F.R.D. 353, 355 (N.D.N.Y.
1996) (failure to comply with the most basic pleading rules, Fed. R. Civ. P. 8 and 10, “presents far
too heavy a burden in terms of defendant’s duty to shape a comprehensive defense and provides
no meaningful basis for the Court to assess the sufficiency of a plaintiff’s claims[]”), leave to
amend this claim is denied.
For example, like here, the Amended Complaint in the other action alleges that Defendants
Graf, Bonning, Hawley, and Noeth (1) failed to return Plaintiff to ECMC for cardiological followup care and “prep” him for implantation of a pacemaker, (2) denied Plaintiff medical care for his
left ankle injury, (3) subjected Plaintiff to retaliatory cell searches and disciplinary hearings, and
(4) denied Plaintiff due process at the hearings. Compare 18-CV-06684, ECF No. 47 at 7-8, 9-10,
19-20, with FAC at 15-21. In fact, it readily appears that the allegations in the two pleadings are
virtually identical.

The coupling of the denial of medical care and due process in relation to disciplinary hearings is wholly illogical
and confusing. It appears that Plaintiff was simply trying to add or comingle claims from past pleadings in this and/or
other cases, including the other action, 18-CV-06684 FPG, without any sense or purpose, hoping that something
“sticks.” This illogical and sloppy pleading cannot and will not be countenanced.
18

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Further, when the Court screened the TAC, it dismissed several claims because they failed
to state plausible claims for relief under the Eighth Amendment. Some of these claims are realleged in the FAC and set forth in the following allegations of deliberate indifference: (1) denial
of medical care—including denial of medications, eyeglasses and hearing aids—following
placement in the mental health units at Southport and Attica, between August 1 through August 7,
2012, against Defendants Bonning, Rao, Graf, and Schunk, which contributed to his re-admittance
at ECMC on August 9; (2) Bonning and Graf discharged Plaintiff from the mental health unit on
August 9 and from August 10-16, Defendant Schussler subjected him to torture like conditions,
ECF No. 40 at 3-5 (Order screening TAC); (3) Graf and Bonning delayed Plaintiff’s Hep-C
treatment; (4) Rao, Graf, and Schunk refused to treat Plaintiff’s urological diagnosed and treated
at Upstate in July 2012; (4) Rao and Schunk refused to treat a podiatric issue stemming from a
prior assault and injury; (5) denial of treatment for an ear infection that caused further hearing loss;
(6) Plaintiff was forced to take cold showers; and (7) Rao, Pritchard, Gullo, Annucci, and Buther
denied Plaintiff auditory aids. Id. at 5-7. Only two of these Eighth Amendment claims—denial
of Hep-C treatment and denial of auditory aids—were reinstated by the Second Circuit and
remanded. The others were not reinstated and thus the dismissals of these claims were upheld on
appeal or they were not raised by Plaintiff on his appeal and thus abandoned. See ECF No. 49,
Ex. 1. 19
This claim is (1) duplicative of claims raised in the other action, see Bailey v. Johnson, 846
F.2d 1019, 1021 (5th Cir. 1988) (“[R]epetitious litigation of virtually identical causes of action is
subject to dismissal under 28 U.S.C. §1915[e] as malicious (quoting Robinson v. Woodfork, 834

Specifically, the inadequate medical care/deliberate indifference claims raised in the Plaintiff’s counseled brief
were: refusal to treat Plaintiff’s Hep-C and refusal to provide hearing aids. ECF No. 49, Ex. 1 at 7, 45-48 (Hep-C
claim) and 55-58 (Hearing Aids). The Second Circuit reinstated those two claims, along with a condition of
confinement and interference with legal mail claim. ECF No. 61.
19

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F.2d 1023 (5th Cir. 1987)) and (2) was dismissed with prejudice previously and either not
reinstated or abandoned on appeal. Accordingly, this claim—and the request to replace Rao with
Williams—would not survive a motion to dismiss and thus leave to add this claim is denied
Further, the denial of Hep-C treatment and hearing aids claims that were reinstated and are
putatively re-alleged in this claim are subsumed within the FAC’s First and Eighth claims. ECF
No. 71 at 13-15 (First), 55-57 (Eighth).
3.

Denial of Due Process at Disciplinary Hearing

Plaintiff alleges that Defendants Noeth and Schussler denied him procedural due process
to use the disciplinary process to cover up the misconduct of Auburn correctional officers that
Plaintiff overheard and reported when he was hospitalized at Upstate. ECF No. 71 at 21-31. The
Court previously found this claim was sufficient to proceed to service against Noeth and Schussler,
see ECF No. 40 at 10; ECF at 64 at 2-3, and, therefore, leave to add this claim is granted. As to
Plaintiff’s request to replace or substitute Noeth with Superintendent at Attica Jane Doe #1, ECF
No. 90, it is denied on this claim, because it was Noeth who allegedly denied Plaintiff due process,
not his successor as Attica’s Superintendent. See Tangreti v. Bachmann, 938 F.3d 609, 618 (2d
Cir. 2020) (“[A] plaintiff must plead and prove that each Government-official defendant, through
the official's own individual actions, has violated the Constitution.” (internal quotation marks and
citation omitted)). When this claim arose, Noeth was not Superintendent; rather he was a Captain
who acted as the hearing officer on the misbehavior reports issued on August 1-3, 2012.
4.

Denial of Access to Courts

Plaintiff asserts that his denial of access to courts claim is a “new” claim in the FAC. ECF
No. 71 at 31-36; ECF No. 49-1 at 14, 21. Upon his arrival at Attica on August 3, 2012, there was
an “asserted effort by SHU and Law Library Officials” to prevent Plaintiff meaningful access to

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materials, “i.e., writing paper, law material, notary service, copy services[.]” This was intended
to “stop and chill any pending actions” in state and federal court. ECF No. 71 at 31. Initially,
Adamy and Greene, 20 Law Library Supervisors and Notaries, made tours of the SHU once a week
to notarize documents, but “[l]aw [m]aterials are supposed to be delivered and picked up mainly
by Defendant D. Bauer (CO). . . .” Id. But, according to Plaintiff, if Bauer did not like you, you
would not get any services. Id. SHU officials used many tactics to control inmates on the unit.
Defendants Counselor Donahue and Director of the Inspector General’s Office Maher refused to
remove these officials from Attica and prevented Plaintiff from transferring to another facility
where he could obtain certain programming and services, e.g., “college education,” typing, and
law library access. Id. at 31-35.
The FAC appears to list several examples of various denials of law library services and
grievances Plaintiff filed in relation to these denials. Defendants referred to in this claim who may
have denied him certain services or who allowed these practices to occur are: Adamy and Greene,
see supra at n.20, Hembrook, Dutty, Moore, Spengler, Clinton, Boll, Noeth (as Superintendent),
Bruen, and Annucci. Id.
The Court previously dismissed this claim with prejudice because the First Amended
Complaint failed to state a plausible denial of access to courts claim. ECF No. 17 at 24-25, 40.
This claim was not reinstated by the Second Circuit on appeal. Cf. United States v. Williams, 475
F.3d 468, 471 (2d Cir. 2007) (“[T]he law of the case doctrine forecloses reconsideration of issues
that were decided—or that could have been decided—during prior proceedings” in the same case).
Further, as addressed in that prior screening order, the mere limitation of access to legal materials

As a further example of the confusing pleading, Plaintiff states that these two individuals are Defendants, but they
are not listed as Defendants in the Caption or Parties to Action section of the FAC. Plaintiff’s Motion to Amend,
however, notes that these two Defendants are replaced in the FAC by Hembrook and Dutty. ECF No. 80 at 4 ¶ 6.
20

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without more, fails to state a violation of the First Amendment, as “the Constitution requires no
more than reasonable access to the Courts.” Pickett v. Schaefer, 503 F. Supp. 27, 28 (S.D.N.Y.
1980).
To state a constitutional claim, a plaintiff must make a showing that he has suffered, or will
imminently suffer, actual harm; that is, that he was “hindered [in] his efforts to pursue a legal
claim.” Lewis v. Casey, 518 U.S. 343, 351 (1996). The FAC, construed liberally, fails to set forth
any allegations regarding how Plaintiff was somehow hindered or prejudiced in pursuing a
nonfrivolous legal claim. Id. at 351-52 (a plaintiff has not shown actual injury unless he shows
that a “nonfrivolous legal claim had been frustrated or was being impeded” due to the actions of
prison officials).
Accordingly, leave to amend to add this claim is denied.
5.

Interference with Legal Mail

This claim was reinstated by the Second Circuit and served on Defendants Cross and
Chudzik. ECF Nos. 61, 64. The FAC additionally alleges that since 1995, Annucci “had urged
DOCCS’s Mailroom supervisors at Sullivan-Clinton-Auburn and now here at Attica . . . to open,
inspect and maybe copy in-coming and out-going legal mail, and personal mail . . . .” ECF No. 71
at 36; ECF No. 49, Ex. 4 (Chart). This allegation against Annucci simply is too conclusory to set
forth a plausible claim against him. See Tangreti, 938 F.3d at 618. There are no plausible
allegations that Annucci himself interfered with Plaintiff’s legal mail at Attica some seven years
after he allegedly urged other mailroom personnel at three prior facilities to open Plaintiff’s mail.
Accordingly, this claim may proceed against Chudzik and Cross, but leave to amend it to
include Annucci is denied.

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6.

Conditions of Confinement-Plaintiff Subjected to “Torture”

This claim was reinstated by the Second Circuit and served on Defendants Noeth,
Schussler, and Donahue. ECF No. 61, 64. The FAC seeks to add several Defendants to this claim:
Annucci, Bauer, Bonning, Chudzik, Cross, Graf, Hawley, Hembrook, Morley, Maher, Norton,
Reddia, Roemesser, Schunk, Williams, and “M __ Z __., #401.” ECF No. 71 at 40-48; ECF No.
49, Ex. 4 (Chart). It also extends the date of the alleged violation from August 2012 through March
2017. ECF No. 71 at 40.
As summarized in the Second Circuit’s decision, Plaintiff alleged that he suffered from
several deprivations and unsanitary conditions when placed under mental health observation
(Special Unit) at Attica following his transfer there in August 2012, 21 including the denial of “food,
showers, eyeglasses, hearing aids or medication[]” and hot water. ECF No. 61 at 9. He also was
subjected to cold weather and cold showers, and “[e]xcessive and [h]arassing use of [a] leg iron
that re-injured a prior broken left ankle bone.” Id. He further alleged that the inmates he was
housed with “kick[ed], yell[ed], bang[ed], thr[e]w feces [and] urine, leave waste in showers [and]
blood on walls.” Id. The Defendants Schussler, Bauer, and Reddia (also referred to as “Reddie”
or “Raddia”) knew that these conditions were in violation of New York Correction Law and
unconstitutional and did not take action to mitigate them. ECF No. 71 at 47 (restating these same
allegations but against additional Defendants Bauer and Reddia); ECF No. 61 at 9 (reinstating
these claims); ECF No. 64 (directing service of this claim on Schussler, Noeth, and Donahue).
Defendants Schussler, Bauer, Reddia, and Norton, revealed Plaintiff’s medical history to other
inmates—e.g., Plaintiff has AIDS, is a “rat”—thereby placing Plaintiff in “enemy-situations” that

See ECF No. 71 at 19 (“[W]hen Plaintiff was returned from ECMC [on or about August 3, 2012]. . . Graf [and]
Bonning had discharged Plaintiff to Attica . . . and placed on a ‘Special Unit’ . . ., where [Attica’s] most severe mental
health condition[s] [were placed] . . . .”).
21

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placed him in danger. ECF No. 71 at 46-47. Inmates’ personal mail was given to other inmates
to create further conflict and control the inmates. Plaintiff complained to Schussler, who retaliated
by filing false misbehavior reports to cover-up this misconduct. Id. at 47.
The FAC also alleges that Defendants Annucci, Morley, Williams, Noeth, Graf, Schunk,
Bonning, Hawley, M__Z__ #401, Hembrook, Bauer, Reddia, Schuessler, Roemesser, Cross,
Chudzik, and others, “all without exception not only [kn[e]w that Plaintiff has the [c]onstitutional
[r]ight to all of th[i]s humane treatment” 22 as set forth in various DOCCS Directives, New York
Correction Law, and the New York and United States Constitutions. Id. at 42.
Despite the FAC’s generally conclusory allegations and lack of more specific factual
allegations related to Defendants’ actual involvement in these violations 23—as was the case with
Plaintiff’s prior pleadings—and the expansion of the timeframe encompassed by the TAC, the
Second Circuit reinstated these identical claims and stated that the TAC, “liberally construed,
suggest[ed] that certain Defendants[] would have been aware of the conditions to which [Plaintiff]
claims he was subjected, either because they caused the conditions to occur (i.e. cold weather) or
because the conditions were easily noticeable.” ECF No. 61 at 9-10 (citing Gatson v. Coughlin,
249 F.3d 156, 165 (2d Cir. 2001) (noting that merely alleging that defendants made “daily rounds”
of a prison and were “directly responsible” for an inmate’s placement is enough to claim they had
actual knowledge of the conditions of confinement)). “[Plaintiff’s] allegation that Defendants
failed to act despite such knowledge is enough to state a colorable claim under the Eighth

The FAC lists several state and federal rights inmates are guaranteed in prison that Plaintiff was denied with
reference to their apparent legal source and claims that all these Defendants were aware of these rights and the
violations and deprivations he suffered. ECF No. 71 at 41-44.

22

For example, Plaintiff does not allege when Dr. Morley replaced Dr. Koenigsmann as DOCCS’s Chief Medical
Officer, or when Dr. Williams replaced Dr. Rao as Attica’s Chief Medical Officer, and whether Drs. Morley and
Williams were in those roles at the time these alleged violations occurred. ECF No. 71 at 40.
23

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Amendment.” ECF No. 61 at 10. The Court therefore finds that this claim is not futile and may
proceed herein.
The issue regarding replacing Koenigsmann with Morley, Rao with Williams, and Fonda
with Maher, ECF No. 85, must again be resolved. Because the allegations that were reinstated by
the Second Circuit and the “new” ones asserted herein appear to refer to events between 2012 and
2017, ECF No. 71 at 40, and relate to the conditions of confinement at Attica, these claims should
proceed against Koenigsmann and Morley, and Rao and Williams—all of whom may have been
in their respective roles at some time during the time period alleged—but not Fonda and Maher.
There is nothing to suggest that as Directors of the Office of Special Investigations, either Fonda
or Maher were personally involved in the alleged Eighth Amendment violations relating to the
conditions of confinement at Attica. See Tangreti, 938 F.3d at 618. Accordingly, Plaintiff’s
Motion is denied to the extent it seeks to replace Koenigsmann with Morley, Rao with Williams,
and Fonda with Maher.
Accordingly, the Court grants Plaintiff leave to amend this claim as to Defendants Annucci,
Koenigsmann, Morley, Rao, Williams, Noeth, Graf, Schunk, Bonning, Hawley, M__Z__ #401,
Hembrook, Bauer, Reddia, Schuessler, Roemesser, Donahue, Norton, Cross, and Chudzik; and
denies Plaintiff’s Motion for Miscellaneous Relief to the extent it seeks to substitute Morley for
Koenigsmann and Williams for Rao, ECF No. 85.
7.

Retaliation

The Court permitted this claim to proceed against Defendant Schussler upon screening of
the First Amended Complaint, ECF No. 7, and the TAC. See ECF No. 17 at 36; ECF No. 40 at 3,
10; see also ECF No. 64 at 2-3. Plaintiff now seeks to add several Defendants to this claim—
Annucci, Bauer, Donahue, Hembrook, Moore, and Spanlgler. ECF No. 71 at 49-54; ECF No. 49,

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Ex. 4 at 105 (Chart). The allegation that survived screening was that Schuessler filed a false
misbehavior report against Plaintiff after it had been reported to Schuessler that Plaintiff had
complained about a sexually abusive comment Schuessler had made. ECF No. 17 at 36. This
allegation is re-alleged in the FAC. ECF No. 71 at 49. However, the allegation that Donahue
reported Plaintiff’s complaint to Schuessler did not proceed to service against Donahue and was
dismissed. ECF No. 7 ¶ 61; ECF Nos. 17 at 34, 36, 39. Thus, to the extent this retaliation allegation
is re-alleged against Donahue, ECF No. 71 at 49, leave to amend is denied.
The FAC appears to add additional retaliation claims against Donahue, ECF No. 71 at 5051, and, possibly, other Defendants—Annucci, Bauer, Hembrook, Maher, Moore, and Spengler,
id. at 51-54. Plaintiff alleges that Donahue retaliated against him when Donahue learned that
Plaintiff had complained to the Office of Special Investigation about Donahue telling Schussler
about Plaintiff’s complaint regarding Spangler’s sexual advance or comment. Donahue allegedly
refused to remove false information from Plaintiff’s inmate file, refused to allow Plaintiff the
opportunity to review his inmate file, refused to process a “CMC” Appeal, refused to grant Plaintiff
good time credits in SHU, and on October 13, 2015, when Plaintiff warned Donahue he would not
get away with his abuse, Donahue filed a false misbehavior report against Plaintiff. These
allegations, other than the one on October 13, 2015, were, at least in part, raised in the First
Amended Complaint, ECF No. 7 ¶ 51, and dismissed. ECF Nos. 17 at 34, 36, 40 at 10-11, 41-42.
The Court previously dismissed all retaliation claims except the one against Schuessler. From
what the Court can tell, these claims were not re-alleged or raised in the TAC, ECF No. 29 at 4142, nor reinstated by the Second Circuit. Accordingly, they cannot be re-alleged in the FAC and
leave to amend is denied.

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As to the October 13, 2015 allegation against Donahue, the filing of a misbehavior report
in retaliation for protected conduct may state an actionable retaliation claim. See Franco v. Kelly,
854 F.2d 584, 590 (2d Cir. 1988). “To prove a First Amendment retaliation claim under Section
1983, a prisoner must show (1) that the speech or conduct at issue was protected, (2) that the
defendant took adverse action against the plaintiff, and (3) that there was a causal connection
between the protected speech and the adverse action.” Espinal v. Goord, 558 F.3d 119, 128 (2d
Cir. 2009) (internal quotation marks omitted). An adverse action is “conduct that would deter a
similarly situated individual of ordinary firmness from exercising . . . constitutional rights.” Gill
v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004) (internal quotation marks omitted). Based on the
FAC’s allegations, this October 13, 2015 retaliation claim may proceed to service against
Donahue. The Court acknowledges that there may be timeliness and relation back issues with this
claim, see Fed. R. Civ. P. 15(c), and permitting this claim to proceed does not preclude Defendants
from moving to dismiss or for summary judgment on this claim or any other surviving claim in
the FAC.
The additional Defendants Plaintiff seeks to add to this claim, however, are different. The
claims are wholly conclusory and, to be frank, incoherent. See ECF No. 71 at 54. Plaintiff, as he
has done in the past and despite being told it is not a proper manner of pleading, see ECF No. at
35, simply lists several alleged acts of retaliation and the grievances he filed and against whom,
and then summarily alleges that Defendants have ignored systematic practices of retaliation “for
anyone who challenges the conditions of their confinement, which is very well known to
Defendants” Annucci, Maher and others. ECF No. 71 at 54. He does not allege in any coherent
manner what act or acts were taken it retaliation for what grievance(s) he filed.

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As noted by the Second Circuit, claims of retaliation are easily fabricated, and the courts
must “examine prisoners’ claims of retaliation with skepticism and particular care,” Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir. 1995), requiring “‘detailed fact pleading . . . to withstand a
motion to dismiss.’” Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) (quoting Angola v.
Civiletti, 666 F.2d 1, 4 (2d Cir. 1981)). To survive a motion to dismiss, retaliation claims must be
“supported by specific and detailed factual allegations,” and not stated “in wholly conclusory
terms.” Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000) (internal quotation marks
omitted); see also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (wholly conclusory claims
of retaliation “can be dismissed on the pleadings alone”); Gill v. Mooney, 824 F.2d 192, 194 (2d
Cir. 1987) (same).
Accordingly, leave to amend is granted with respect to the pre-existing retaliation claim
against Schuessler and the retaliation claim against Donahue related to the October 13, 2015
allegation only, but denied as to all other allegations and Defendants.
8.

Denial of Hearing (Auditory) Aids and Eyeglasses

Plaintiff’s Eighth Amendment and ADA claims alleging the denial of hearing (auditory)
aids was reinstated by the Second Circuit and ordered served on Rao, Pritchard, Michalek, Artus,
Gullo, and Buther. ECF Nos. 61, 64. The denial of hearing aids claim will proceed against these
Defendants, see ECF No. 64, but to the extent he seeks to add Annucci, it is denied. Plaintiff odes
not allege Annucci’s personal involvement in the denial of hearing aids. See Tangreti, 938 F.3d
at 618.
The alleged denial of eyeglasses, however, is a new claim sought to be added in the FAC.
Plaintiff was assaulted on August 1, 2012, and his eyeglasses and hearing aids were destroyed. He
was transferred first to Southport on August 1, 2012, and then to Attica on August 3, without his

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hearing aids and eyeglasses. His eyeglasses were not replaced until September 2012 and his
hearing aids were not replaced until November 2, 2012. Plaintiff immediately requested a
reasonable accommodation and filed several grievances related to his hearing aids and/or
eyeglasses. ECF No. 71 at 56. In this claim, Plaintiff only refers to Defendants Annucci and
Gullo, the audiologist, but there are no allegations that either of these two Defendants were
personally involved in denying Plaintiff his eyeglasses at Attica between August and September
2012. The reference to Annucci dates to 1999 and an “order” that Plaintiff be held in “Ad. Seg.”
at Sullivan Correctional Facility. During this confinement in Ad. Seg., Plaintiff was denied
medical care and developed an ear infection. In August 2000, Plaintiff finally saw an audiologist
who diagnosed him with significant hearing loss and recommended hearing aids. None of these
allegations have anything whatsoever to do with the denial of eyeglasses after Plaintiff’s transfer
to Attica. Accordingly, the claims relating to the failure to replace Plaintiff’s eyeglasses fail to
state a claim upon which relief can be granted and leave to amend to add this claim is denied.
9.

Denial of Right/Ability to Maintain Familial Relationships

In the FAC, Plaintiff seeks to add a new denial of right/ability to maintain familial
relationships claim.

This claim is, again, confusing and illogical and purports to allege a

conspiracy or attempt to isolate Plaintiff from his family members and others since 1994. “Since
October 7, 1994, County and State Officials attempted to isolate from family, friends, lawyers . . .
anyone on the outside, which was behind the removal of both personal and legal documents on
February 8, 2018, by orders of Defendant J. Moore (Deputy, OSI) executed by Defendant J.
Spangler (Deputy OSI) . . . prompting a grievance . . . and to deflect official misconduct . . . .”
ECF No. 71 at 57-58. This—presumably the removal of documents from his file—was consistent
with the “past practice” of filing false misbehavior reports and denying Plaintiff due process at the

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subsequent disciplinary hearings.

Id. at 58.

Defendant Noeth—presumably Attica’s

Superintendent in February 2018—assigned Defendant Donahue to conduct the disciplinary
hearings at which Plaintiff was allegedly denied due process. Id. at 58.
Defendants Michalak, Williams, Schunk, and others had an “obligation” to contact
Plaintiff’s emergency contact whenever he was hospitalized or suffered a health emergency, which
Defendants failed to do on October 10, 2019. This was not an isolated failure; similar incidents
occurred on April 19, 2011, when Plaintiff suffered a heart attack and on February 18, 2007, when
Plaintiff was assaulted at Clinton. Id. According to Plaintiff, Annucci encouraged this conduct to
keep Plaintiff incarcerated at facilities furthest from his family. Plaintiff did not speak to his family
until 2000, after he was transferred to Clinton. Id. This did not just apply to family members; in
2019, 24 someone interfered with a scheduled call with Plaintiff’s attorney. Id.
This claim purports to assert a denial of Plaintiff’s ability to maintain family relationships.
Liberally construed, it alleges that Defendants denied Plaintiff the right of free association
protected under the First Amendment by housing him at facilities farthest from his family. “This
right, as applied to prisoners, is among the rights least compatible with incarceration.”
Kruppenbacher v. Annucci, 2020-CV-010 (LLS), 2021 WL 412281, at * 5 (S.D.N.Y. Feb. 3,
2021) (quoting Overton v. Bazzetta 539 U.S. 126, 131 (2003)).
[I]n Overton, the Supreme Court declined to consider whether there is a First
Amendment right to visitation in prison: “We need not attempt to explore or define
the asserted right of association at any length or determine the extent to which it
survives incarceration.”. . . . Where the Second Circuit assumed without holding
“that prisoners have a right under the First Amendment to have family visits,” the
Circuit noted that the “right could not require that visits by family members be

This date is known only by the reference in the FAC to the Grievance Number: No. A-76644-19, of the grievance
Plaintiff filed in relation to this incident. ECF No. 71 at 58. The FAC lists over one hundred grievances Plaintiff
claims he filed in relation to the claims alleged. Id. at 8-12. The grievances are listed by reference to the claim (“cause
of action”) and page number to which they refer. Id.
24

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permitted on demand, but rather must be subject to reasonable restrictions on the
time, place and manner of visits.”
Krupenbacher, 2021 WL 412281 at *5 (internal citations omitted).
Here, even assuming there is a First Amendment right to family visitation, Plaintiff has not
stated a constitutional claim. What he alleges is that Defendants placed him in facilities that made
it difficult for his family to visit him and that his family was not notified when he suffered serious
health issues. These allegations do not support a claim that he was denied a First Amendment
right to freedom of association. A prisoner has no constitutional rights to be confined in a
particular prison facility or transfer to a prison of his choosing. See, e.g., Olim v. Wakinekona, 461
U.S. 238, 245 (1983) (inmates have no right to be confined in a particular state or a particular
prison within a given state); Meachum v. Fano, 427 U.S. 215, 225 (1976) (transfer among
correctional facilities, without more, does not violate inmate's constitutional rights, even where
conditions in one prison are “more disagreeable” or the prison has “more severe rules”); Andrews
v. Semple, No. 3:17-cv-1233 (SRU), 2017 WL 5606740, at *4 (D. Conn. Nov. 21, 2017)
(dismissing due process claim that prison officials refused to transfer inmate to prison facility of
his choice, because “he has no constitutionally protected right to be housed” at specific facility).
Accordingly, Plaintiff’s claims related to his confinement in facilities that made it difficult
for his family to visit him and that his family was not notified when he suffered medical
emergencies is futile and leave to amend the FAC seeking to add this claim is denied.
10.

Conspiracy Allegations

This new conspiracy claim, as best this Court can discern, alleges a decades old, far-ranging
conspiracy, involving, among others, Louis Pataki—the former Governor and then gubernatorial
candidate George Pataki’s campaign manager and brother—, Defendants Dale Artus and Annucci,
a New York State Parole official, local prosecutors and law enforcement officers, and former
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Governors Andrew Cuomo and George Pataki, to prevent Plaintiff from going public with the true
cause of the death of a woman in 1994. 25 This conspiracy allegedly resulted in the August 1, 2012
assault by Clinton correctional officers that occurred while Plaintiff was on a cardiology
appointment, the denial of Hep-C treatment since 2004 and later, and other misconduct at Attica
following his transfer there on August 3, 2012.

At some point, Artus was appointed

Superintendent at Attica by Annucci, where he remained until his retirement in 2016 or 2017. ECF
No. 71 at 59-64.
According to the FAC, in 1994, Plaintiff reported to his parole office in Peekskill, New
York but unbeknownst to him he had become a suspect in two murders in September 1994 in the
Village of South Nyack-Grandview, New York. This was a pretext to get Plaintiff to go to the
Peekskill Police Department to obtain fingerprints and photos, while Senior Police Officers spoke
with “Lou,” presumably Louis Pataki. Plaintiff was released and told to report to the South NyackGrandview Police Department on October 7, 1994. At the same time, the Director of Parole and
the Nassau and Rockland County District Attorneys had agreed with Lou that Plaintiff would be
released and followed until the media had generated an arrest event or photo-op as Plaintiff was
walking into the police station. Lou agreed that Plaintiff would become another “Willie Horton;”
a reference to the 1998 United States Presidential Campaign where the Democratic challenger for
President, Michael Dukakis, was accused of allowing an inmate to be released on parole while he
was the governor of Massachusetts and the parolee killed someone while on parole. ECF No. 5960.
In route to the Peekskill Police Department, while Plaintiff was being followed, he struck
and killed a woman. In exchange for his silence regarding how this death occurred, Plaintiff agreed
The Court acknowledges the questionable relevance and credibility of these allegations but finds it necessary to
include these allegations herein for a full understanding of Plaintiff’s claims.
25

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to plead guilty to the other crimes for which he was a suspect in consideration for the sentence he
would receive. Id. at 62-63. Plaintiff learned in 2008, that his conditional release date was changed
from 2006 to 2028. Plaintiff complained to then Governor George Pataki and threatened to go
public about what occurred in 1994 and Pataki, through the then-Commissioner of DOCCS, Glenn
Goord, gave Artus, then Superintendent at Clinton, the “green light” to silence Plaintiff. On
October 1, 2006, Plaintiff was assaulted at Clinton. Annucci, who was an “associate” of one of
Plaintiff’s “victims,” and Artus attempted to silence Plaintiff by denying Plaintiff Hep-C treatment
and having Plaintiff assaulted on August 1, 2012. Id. 62-64. Andrew Cuomo, former Governor
and Attorney General of New York, knew these facts and “sold them” for former United States
Senator Alphonse D’Amato’s support of his father, then Governor Mario Cuomo, instead of the
Republican Candidate George Pataki, in the 1994 New York Gubernatorial race. Id. at 60
As best understood, Plaintiff alleges a conspiracy to have him killed by Defendants
Annucci and Artus, who allegedly had him assaulted and denied necessary medical care so that
Plaintiff did not disclose the cause of the woman’s death in 1994. First, as noted by Defendants,
none of them have any involvement in local prosecutorial decisions. ECF No. 49-1 at 19. Plaintiff
attempts to link Annucci to this purported conspiracy by alleging that Annucci was an associate of
the South Nyack-Grandview crime victim or a detective and attended a meeting with the victim in
1995. Through this, he links Defendant Artus to the conspiracy. Without commenting on the
credibility of these conspiracy allegations, it is abundantly clear that the allegations are, at best,
wholly conclusory and do not support a plausible claim that Annucci and Artus, along with others,
conspired to deprive Plaintiff of his constitutional rights and tried to kill him by having him
assaulted and denied medical treatment while in DOCCS custody at Attica. See, e.g., Sommer v.
Dixon, 709 F.2d 173, 175 (2d Cir. 1983) (per curiam); see also Ciambriello v. County of Nassau,

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292 F.3d 307, 324-25 (2d Cir. 2002) (“[C]omplaints containing only conclusory, vague, or general
allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his
constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient,
unless amplified by specific instances of misconduct.”) (internal quotation marks omitted).
Accordingly, leave to amend the FAC to add this claim is denied.
11.

A Conspiracy to Retaliate by Use of Prison Disciplinary Process Cover Up
Official Misconduct

Plaintiff’s new claim regarding a conspiracy to cover up official misconduct and retaliate
is confusing and illogical. 26 He appears to allege that on November 30, 2012, Defendants Attica
Superintendent Noeth, used the disciplinary process to confine Plaintiff based on false misbehavior
reports issued to cover up official misconduct. ECF No. 71 at 65. According to the allegations, it
appears that one of the instances of misconduct Defendants sought to cover up was the April 2011
conversation among Auburn correctional officers that Plaintiff overheard while he was a patient
at Upstate during which the officers lied about being a dying inmate’s family to obtain overtime
pay and defraud the state. See supra at 22-23; ECF No. 71 at 21-31. Following the incident at
Upstate, Plaintiff filed grievances and other complaints and was threatened with physical violence,
presumably well after April 2011, when this incident occurred. Id. at 65-66. Plaintiff was taken
to an outside hospital at least eight times because he was denied medical care and medication for
his heart. On August 1, 2012, Plaintiff’s cardiologist said his heart condition was not improving.
Id. at 66.
On August 1, 2012, when Plaintiff left Auburn, he was strip-searched and placed in an area
with other inmates although his classification status requires him to be separated from other
inmates. This provided inmates with an opportunity to exchange contraband. When Plaintiff
26

See supra at n.25.

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returned to the holding area, all the other inmates had returned to their respective facilities. Rather
than searching the holding area before placing a fully restrained Plaintiff there, he was placed in a
glass secured and separate room. He had to use the bathroom, which was in the same room, and
while in the bathroom with one hand out of the cuffs, he suffered chest pains and requested a “nitro
pill.” He next recalls being in an ambulance and he demanded to see the FBI “because escort staff
was trying to cause [his] death.” Id. at 66. Plaintiff was taken to Upstate and placed in the “U7”
ward when Annucci and others in DOCCS Central Office ordered the “CERT” team to remove
him from the hospital and transport him to Southport, where he was placed on suicide watch, while
Defendants decided how to cover up the misconduct. Defendants decided to have Plaintiff attempt
an escape and commit “S[u]icide by Cop.” Id. at 67. He was held in the mental health unit, even
though the psychologists did not sign off on his placement there. Id. Defendants then came up
with a “plot” to issue three misbehavior reports, dated August 1 and 2, 2012, and after being cleared
for transfer by the psychologists, Plaintiff was transported to Attica on August 3. Id.
Defendant Noeth, after placing Plaintiff in the mental health unit and denying him all
medication and his eyeglasses and hearing aids, used this opportunity to deny Plaintiff a timely
Tier III Superintendent’s Hearing. Because Plaintiff had been cleared for transfer, there was no
basis for not holding the hearing within seven days. Id. Defendants eventually confined Plaintiff
to SHU for 60 months, during which he was subjected to everything “humanly possible.” Id.
Defendants were aware of the conditions under which Plaintiff was confined but ignored them
because they either wanted to cause his death or severe mental illness so he could be drugged and
controlled. Id. “It has been Defendant Annucci[’s] long wish that the severe hardship he would
subject Plaintiff to . . . in SHU,” would lead Plaintiff down the path of so many other SHU inmates
who request mental health treatment “in order to manipulate themselves out of the Disciplinary

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Sanctions and avoid having to be in dangerous institutions like Attica [and others],” but Plaintiff
refused to go down this path. Id. at 67-68.
Liberally construed, this claim, as best understood by the Court, alleges that Noeth
retaliated against Plaintiff on November 30, 2012, when Plaintiff was sentenced to 60 months’
SHU confinement at Attica, presumably following a Tier III Superintendent Hearing held in
relation to the misbehavior reports issued on August 1-2, 2012. As alleged, the retaliation was, in
part, due to the events in 1994 and 1995 regarding the alleged cover up of a woman’s death and
the April 2011 incident where Plaintiff overheard Auburn correctional officers trying to
fraudulently collect overtime pay. ECF No. 71 at 65-66. As noted above, see supra at 32-34,
claims of retaliation are easily fabricated, and the courts must “examine prisoners’ claims of
retaliation with skepticism and particular care,” Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.
1995), requiring “detailed fact pleading . . . to withstand a motion to dismiss.” Flaherty, 713 F.2d
at 13 (internal quotation marks omitted); see also Friedl, 210 F.3d at 85-86 (to survive a motion
to dismiss, retaliation claims must be “supported by specific and detailed factual allegations,” and
not stated “in wholly conclusory terms.”) (internal quotation marks omitted)).

Plaintiff’s

retaliation claim against Noeth and Annucci simply cannot withstand this scrutiny and leave to
amend to add this claim is denied.
12.

Sequence of Retaliatory Actions

The FAC continues with a section titled “Sequence of Retaliatory Actions.”

Id. at 69.

Defendants construe this section as a separate claim sought to be added, and not part of the
Eleventh Claim. ECF No. 49, Ex. 4 at 105 (Chart). What is clear, however, is that the claims
alleged are supplemental claims that occurred in 2020 and later, years after August 1-3, 2012,
which Plaintiff has noted are the primary dates of his claims herein.

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Amendment restrict[s] the violation from August 1, 2012 [through] August 3, 2012, upon arrival
at Attica C.F. from Southport C.F. . . . .”). Further, while Plaintiff may wish to include these claims
within this action because some, at best, attempt to allege that they are part of some decades old
retaliatory pattern or scheme that began in 1994 or 1995 by Annucci, they simply do not relate to
or arise out of any of the same transactions or occurrences of the other claims asserted in the FAC.
As addressed above, see supra at 14, while supplemental pleadings are permitted with leave
of court, Fed. R. Civ. P. 15(d), there is no basis to add these claims to this action at this time.
Granting leave to add the supplemental claims would not be in the interest of justice and would
cause needless delay and require potentially lengthy discovery and motion practice to a case filed
over six years ago. See Quaratino, 71 F.3d at 66 (a supplemental pleading must allege facts
“connect[ed] . . . to the original pleading.”); see also Klos, 835 F. Supp. at 716 (denying the inmateplaintiff’s motion to supplement the complaint because the allegations set forth in the plaintiff’s
supplemental pleading contained allegations arising from events that occurred “a year later at two
entirely different correctional facilities”). Thus, leave to amend the FAC to add the claims set
forth in this section is denied. Plaintiff, as with his supplemental denial of access to courts/mail
interference claim against Rossi and Chudzik, see supra at 13-14, may file a new action, within
the unexpired three-year statute of limitations applicable to actions filed in New York under
section 1983. See Owens v. Okure, 488 U.S. 235, 251 (1989).
ORDER
IT IS HEREBY ORDERED that Plaintiff’s (1) Motion to Amend, ECF No. 80, and proceed
with the FAC, ECF No. 71; (2) Motion for Miscellaneous Relief, ECF No. 85; and (3) Motion to
Compel Addresses, ECF No. 98, are GRANTED IN PART and DENIED IN PART, as follows:

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(1)(a) Leave to amend to asset the FAC’s First Claim is GRANTED and may proceed
against Defendants Morley, Koenigsmann, Rao, Williams, Graf, Bonning, Michalek, Schunk, and
Artus, only, (b) the Motion for Miscellaneous Relief is DENIED to the extent it seeks to replace
Defendant Koenigsmann with Morley, Defendant Rao with Williams, and Defendant Fonda with
Maher, (c) the Clerk of Court is directed to cause the United States Marshals Service to serve the
Summons and FAC on Morley, at the New York State Department of Corrections and Community
Supervision, 1220 Washington Avenue, #9, Albany, New York 12226, and Williams, at Attica
Correctional Facility, 639 Exchange St., Attica, New York 14011, without Plaintiff’s payment
therefor, unpaid fees to be recoverable if this action terminates by monetary award in Plaintiff’s
favor; (d) the Clerk of Court is directed to add DOCCS Chief Medical Officer Dr. Koenigsmann
and Attica Chief Medical Officer Dr. Williams, to the Caption of this action, and (e) to the extent
Plaintiff seeks to assert the First Claim against Defendant Bogarak (Bogarski), 27 that claim is
DISMISSED;
(2)(a) Leave to amend to assert the FAC’s Second Claim is DENIED, and (b) the Motion
for Miscellaneous Relief to the extent it seeks to replace Rao with Williams is DENIED for this
claim, ECF No. 85;
(3)(a) Leave to amend to assert the FAC’s Third Claim as against Defendants Noeth and
Schuessler is GRANTED, and (b) the Motion to Substitute to the extent it requests to replace Noeth
with Superintendent of Attica Jane Doe, ECF No. 90, is DENIED;

The Court notes that certain parties referred to in the FAC are not named in the Caption or Parties to Action section
of the FAC. Therefore, those unnamed parties cannot be terminated from the action. If they are named in the Caption
or Parties to Action section, the Clerk will be directed to terminate them as a defendant. The Court also directs the
Clerk to amend the caption as it is set forth below. Further, the current official Caption of this action does not reflect
each Defendant named in the FAC’s Caption.

27

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(4)(a) Leave to amend to assert the FAC’s Fourth Claim is DENIED, and (b) the Clerk of
Court is directed to terminate Defendants Maher, Boll, Bruen, Clinton, Dutty, Moore, Fonda,
Wilson, Tenbrick, and Spangler as parties to this action;
(5)(a) Leave to amend to assert the FAC’s Fifth Claim against Defendant Chudzik and
Cross, only, is GRANTED, and (b) Defendant Annucci is dismissed as a Defendant on the Fifth
Claim;
(6)(a) Leave to amend to assert the FAC’s Sixth Claim against Defendants Annucci,
Koenigsmann, Morley, Rao, Williams, Noeth, Graf, Schunk, Bonning, Hawley, M__Z__ #401,
Hembrook, Bauer, Reddia, Schuessler, Roemesser, Donahue, Norton, Cross, and Chudzik is
GRANTED, (b) Plaintiff’s Motion for Miscellaneous Relief is DENIED to the extent it seeks to
substitute Williams for Koenigsmann and Williams for Rao, ECF No. 85, and (c) Defendant Maher
and Fonda are dismissed as Defendants on the Sixth Claim and the Clerk of Court is directed to
terminate Maher as a party to this action;
(7)(a) Leave to Amend to assert the FAC’s Seventh Claim is GRANTED with respect to
the pre-existing claim against Defendant Schuessler and the October 13, 2015 claim against
Donahue only, but DENIED with respect to all other claims and Defendants, and (b) any claims
against Annucci, Bauer, Hembrook, Maher, Moore, and Spangler in the Seventh Claim are
dismissed;
(8)(a) Leave to amend to assert the FAC’s Eighth Claim is GRANTED to the extent it
alleges a denial of hearing aids against Defendants Rao, Pritchard, Michalek, Artus, Gullo, and
Buther, but DENIED to the extent it alleges a denial of eyeglasses against Annucci and Gullo, and
(b) Defendants Annucci and Gullo are dismissed as Defendants on the Eighth Claim;

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(9)(a) Leave to amend to assert the FAC’s Ninth Claim is DENIED, and (b) Defendants
Michalek, Williams, Schunk, Moore, and Spangler are dismissed as Defendants in the Ninth
Claim;
(10)(a) Leave to amend assert the FAC’s Tenth Claim is DENIED, and (b) Annucci and
Artus are dismissed as Defendants in the Tenth Claim;
(11) Leave to amend to assert the FAC’s Eleventh Claim is DENIED; and
(12) Leave to amend to assert the FAC’s Twelfth Cause of Action, to the extent it is
intended as a separate claim or part of the Eleventh Claim is DENIED; and it is further
ORDERED that Plaintiff’s Motion to Substitute Parties and add a Supplemental Pleading,
ECF No. 90, is DENIED; and it is further
ORDERED that the Clerk of Court shall add Defendants Dr. Koenigsmann and Dr. Rao as
Defendants to the Caption of action and terminate Defendants Boll, Bruen, Maher, Clinton, Dutty,
Moore, Tenbrick, Wilson, and Spangler; as parties to this action 28 and it is further
ORDERED that only the following claims alleged in the FAC may proceed: (1) the denial
of Hep-C claim (First Claim) against Defendants Rao, Williams, Graf, Bonning, Michalak,
Schunk, Artus, Koenigsmann, and Morley; (2) the denial of due process claim (Third Claim)
against Noeth and Schussler; (3) the legal interference with mail claim (Fifth Claim) against
Chudzik and Cross; (4) the conditions of confinement claim (Sixth Claim) against Annucci,
Koenigsmann, Morley, Rao, Williams, Noeth, Graf, Schunk, Bonning, Hawley, “M__ Z__,” RN
#401, Hembrook, Bauer, Reddia, Schussler, Roemesser, Donahue, Norton, Cross, and Chudzki;
(5) the retaliation claim (Seventh Claim) against Schussler and the October 13, 2015 incident

The Court recognizes that some of these Defendants may not be listed currently in the official Caption of this action
and/or the FAC’s Caption, ECF No. 71 at 2-3, but due to the confusing nature of the FAC regarding who are the
defendants, the Court finds it necessary to list these Defendants herein and to terminate them from this action to the
extent listed or referred to in the Caption of this action or the FAC.
28

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against Donahue; and (6) the denial of hearing aids claim (Eighth Claim) against Rao, Pritchard,
Michalek, Artus, Gullo, and Buther;
ORDERED that the Clerk of Court is directed to amend the Caption of this action as
follows, see supra at 28: Reginald Ghaffaar McFadden v. Anthony J. Annucci, Jr., AC-DOCCS,
John Morley, MD-DC-DOCCS, Dr. Koenigsmann, MD-DC-DOCCS, Joseph Noeth, S-ACF, Dr.
Rao, MD-ACF, Dr. Williams, MD-ACF, Deborah Graf, PA-ACF, Alicia Schunk, PA-ACF,
Sandra Michalek, NA-ACF, Deborah Bonning, RN #425-ACF, Vincent Hawley, RN #284-ACF,
M__Z__, RN #401-ACF, R. Roemesser, IA(C)-ACF, J. Cross, MRS-ACF, C. Chudzik, MRSACF, Eric Schuessler, CO-ACF, S. Reddia, CO-ACF, Norton, CO-ACF, Brian Hembrook,
CO/LLS-ACF, D. Bauer-CO-ACF and Joseph Gullo, Aud-DOCCS.
IT IS SO ORDERED.
Dated: September 14, 2021
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
United States District Judge
Western District of New York

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