Hendrix v. Martuscello

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

TROY HENDRIX,

Plaintiff,

v. 9:20-CV-0743

(GTS/TWD)

ANTHONY J. ANNUCCI, Acting Commissioner,

Department of Corrections and Community

Supervision; JAMES O’GORMAN, Deputy

Commissioner for Correctional Facilities; JOSEPH

BELLNIER, former DOCCS Deputy Commissioner

for Correctional Facilities; PATRICK REARDON,

Superintendent of Marcy Correctional Facility;

JUSTIN THOMAS, former Superintendent of Marcy

Correctional Facility; JOHN COLVIN, former

Superintendent of Five Points Correctional Facility;

PAUL CHAPPIUS, former Superintendent of Elmira

Correctional Facility; JOHN or JANE DOES 1-5,

members of the DOCCS SHMC at Elmira

Correctional Facility; JOHN or JANE DOES

6-10, members of the DOCCS SHMC at Marcy

Correctional Facility; JOHN or JANE DOES 11-15,

members of the DOCCS SHMC at Five Points;

Defendants.

____________________________________________

APPEARANCES: OF COUNSEL:

SIDLEY AUSTIN LLP JAMES D. ARDEN, ESQ.

Counsel for Plaintiff CASSANDRA LIU, ESQ.

787 Seventh Ave.

New York, NY 10019

HON. LETITIA A. JAMES DENISE P. BUCKLEY, ESQ.

Attorney General for the State of New York Assistant Attorney General

Counsel for Defendants

The Capitol

Albany, NY 12224

GLENN T. SUDDABY, Chief United States District Judge

DECISION and ORDER

Currently before the Court, in this prisoner civil rights action filed by Troy Hendrix

("Plaintiff") against Acting Commissioner of the New York State Department of Corrections and

Community Supervision (“DOCCS”) Anthony J. Annucci (“Defendant Annucci”), DOCCS

Deputy Commissioner for Correctional Facilities James O’Gorman (“Defendant O’Gorman”),

former DOCCS Deputy Commissioner for Correctional Facilities Joseph Bellnier (“Defendant

Bellnier”), Superintendent of Marcy Correctional Facility (“Marcy C.F.”) Patrick Reardon

(“Defendant Reardon”), former Superintendent of Marcy C.F. Justin Thomas (“Defendant

Thomas”), former Superintendent of Five Points Correctional Facility (“Five Points C.F.”) John

Colvin (“Defendant Colvin”), former Superintendent of Elmira Correctional Facility (“Elmira

C.F.”) Paul Chappius (“Defendant Chappius”), and John or Jane Does 1-15 (“Defendants John or

Jane Does”) 1 (collectively, "Defendants"), is Defendants’ motion to dismiss parts of Plaintiff’s

Amended Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).2 (Dkt. No.

48, Attach. 1 [Defs.’ Memo. of Law].) For the reasons set forth below, Defendants’ motion to

dismiss is granted in part and denied in part.

I. RELEVANT BACKGROUND

A. Plaintiff’s Amended Complaint

Generally, liberally construed, Plaintiff’s Amended Complaint asserts five claims against

Defendants: (1) a claim against all Defendants for inadequate conditions of confinement in

1 Defendants John or Jane Does 1-15 refer to fifteen unnamed DOCCS prison guards assigned to Special Housing Management Committees

(“SHMC”) at various DOCCS correctional facilities during Plaintiff’s confinement at those respective facilities. Specifically, John or Jane Does 1-5 were

members of the SHMC at Elmira C.F., John or Jane Does 6-10 were members of the SHMC at Marcy C.F., and John or Jane Does 11-15 were members of SHMC

at Five Points C.F. (Dkt. No. 42, at ¶¶ 23-24.)

2 Defendants’ motion to dismiss was filed on behalf of the seven (7) named Defendants,

not Defendants John or Jane Does 1-15. (Dkt. No. 48, Attach. 1, at 5 [Defs.’ Mem. of Law].)

violation of the Eighth Amendment;3 (2) a claim against all Defendants for grossly

disproportionate sentences of solitary confinement in violation of the Eighth Amendment;4 (3) a

claim against all Defendants for a lack of timely and meaningful periodic reviews in violation of

the Fourteenth Amendment’s Due Process Clause;5 (4) a claim against Defendants Annucci,

O’Gorman, and Bellnier (collectively, “the DOCCS Commissioner Defendants”), in their official

capacities, for a violation of Title II of the Americans with Disabilities Act of 1990 (“ADA”);

and (5) a claim against the DOCCS Commissioner Defendants, in their official capacities, for a

violation of Section 504 of the Rehabilitation Act. (Dkt. No. 42, at ¶¶ 99-134 [Pl.’s Am.

Compl.].)

Generally, in support of these claims, Plaintiff’s Amended Complaint alleges as follows:

(1) between April 2006 and October 2017, on the basis of administrative segregation (“Ad Seg”),

Plaintiff was incarcerated in solitary confinement in numerous DOCCS’ Special Housing Units

(“SHU”) located throughout multiple correctional facilities, including (i) between April 2006

and December 2006, when Plaintiff was incarcerated at Downstate Correctional Facility’s

(“Downstate C.F.”) SHU, (ii) between December 2006 and June 2011, when Plaintiff was

incarcerated at Five Points C.F.’s SHU, (iii) between June 2011 and July 2012, when Plaintiff

was incarcerated at Wende Correctional Facility’s (“Wende C.F.”) SHU, (iv) between July 2012

3 Any defendant who is a current New York State employee is sued in his or her official

capacity for declaratory and injunctive relief. Additionally, Defendants are sued in their

individual capacities for monetary damages. (Dkt. No. 42, at 28 [Pl.’s Am. Compl.].)

4 Any defendant who is a current New York State employee is sued in his or her official

capacity for declaratory and injunctive relief. Additionally, Defendants are sued in their

individual capacities for monetary damages. (Dkt. No. 42, at 29 [Pl.’s Am. Compl.].)

5 Any defendant who is a current New York State employee is sued in his or her official

capacity for declaratory and injunctive relief. Additionally, Defendants are sued in their

individual capacities for monetary damages. (Dkt. No. 42, at 30-31 [Pl.’s Am. Compl.].)

and October 2017, when Plaintiff was incarcerated at Elmira C.F.’s SHU, (v) between October

2017 and present, when Plaintiff has either been incarcerated at Five Points C.F.’s Residential

Mental Health Unit (“RMHU”) or Marcy C.F.’s RMHU, and (vi) the present time, when Plaintiff

is incarcerated at Marcy C.F.’s RMHU;6 (2) Plaintiff’s SHU incarceration has never been due to

his disciplinary status; (3) following a disciplinary hearing to determine whether an inmate has

violated the law, or prison rules and regulations, prison officials can incarcerate that inmate in a

SHU for a specified period of time; (4) an inmate can be incarcerated in SHU on an Ad Seg basis

for an indefinite period of time; (5) at each DOCCS correctional facility, a Special Housing

Management Committee (“SHMC”)7 is tasked with reviewing whether an inmate incarcerated

under an Ad Seg status should remain an Ad Seg inmate or be removed from Ad Seg and placed

into the prison’s general population; (6) between April 2006 and April 2017, in accordance with

7 N.Y.C.R.R. § 301.4, SHMCs were required to conduct reviews of Ad Seg inmates every sixty

days; (7) beginning in April 2017, 7 N.Y.C.R.R. § 301.4 was amended such that SHMCs were

required to conduct reviews of Ad Seg inmates every thirty days; (8) under 7 N.Y.C.R.R. §

301.4, an SHMC was required to write a report highlighting the inmate’s institutional record,

including (i) reasons why the inmate was initially determined to be appropriate for Ad Seg, (ii)

information on the inmate’s subsequent behavior and attitude, and (iii) any other factors that the

6 According to the Amended Complaint, an inmate confined in a SHU spends twenty-three

hours per day in their own cell. SHU inmates are permitted one hour of daily outdoor recreation

in which they are placed into an empty holding area without any other inmates or equipment.

SHU inmates have limited opportunities to participate in work, cultural, religious, and social

activities. RMHU was designed to address the special needs of SHU inmates diagnosed with a

serious mental illness. There are slight variations between SHU and RMHU. For example,

RMHU inmates participate in four hours of mental health and behavioral programming each

weekday and are permitted to keep snack food in their cell.

7 Each SHMC is comprised of DOCCS employees, including, a deputy superintendent, a

SHU sergeant, a disciplinary lieutenant, and employees designated by the facility’s

superintendent.

SHMC thought may favor retaining the inmate in Ad Seg or releasing the inmate from Ad Seg;

(9) Plaintiff’s periodic Ad Seg reviews were not conducted in the required frequency; (10)

between August 2012 and December 2019, Plaintiff’s Ad Seg reviews consisted of an identical

recitation of his prior criminal history and attempted escape in Brooklyn Supreme Court;8 (11)

Plaintiff’s periodic Ad Seg reviews have described generally improved behavior, including (i)

the fact that, on April 16, 2013, Plaintiff’s good behavior led Elmira C.F.’s SHMC to believe

Plaintiff “should be allowed out of cell time once [per] week for television viewing,” (ii) the fact

that, on August 13, 2013, Plaintiff’s “positive custodial adjustment” led Elmira C.F.’s SHMC to

believe that Plaintiff “should continue to receive the additional out-of-cell time and commissary

food item incentives,” (iii) the fact that, on March 27, 2015, Plaintiff’s demeanor was

documented to be “soft spoken, polite and neat,” while also communicating well with prison

staff, and (iv) on June 4, 2018, Plaintiff “continued to interact well with [DOCCS] executive and

line staff. His personal and cell hygiene continue to be appropriate if not excellent. [Plaintiff’s]

adjustment continues to be satisfactory with no disciplinary reports to review;” (12)

notwithstanding Plaintiff’s improved behavior, as documented on his periodic Ad Seg reviews,

Defendants O’Gorman, Bellnier, and John or Jane Does 1-15 refused to allow for Plaintiff’s

transfer out of Ad Seg and into general population; (13) as an Ad Seg inmate, Plaintiff had

limited human interaction which typically occurred only with DOCCS correctional officers or

medical staff;9 (14) to justify Plaintiff’s continued Ag Seg status, Defendants used and inserted

8 Plaintiff concedes that an Ad Seg review dated October 19, 2012, references four

misbehavior reports that had been issued earlier in 2012. Plaintiff does not include information

describing the conduct giving rise to the issuance of the four misbehavior reports.

9 Between April 2006 and April 2014, Plaintiff was not permitted to make phone calls.

Beginning in April 2014, Plaintiff was allotted two 30-minute phone calls per month, and was

permitted to have one visitor per week.

formulaic and boilerplate language into the periodic Ad Seg reviews; (15) Defendants’ use of

formulaic and boilerplate language constitutes a failure to conduct a meaningful evaluation of

whether a continuance of Plaintiff’s Ad Seg status was justified; (16) as a result of his Ad Seg

status, Plaintiff’s solitary confinement has caused him to suffer from physical and emotional

trauma, including photophobia, 10 exacerbated asthma, arthritis in his knee, a toe infection that

has required two surgeries, and has worsened his antisocial personality disorder and bipolar

disorder diagnoses;11 and (17) Plaintiff has exhausted all available administrative remedies to

help him seek justice. (Dkt. No. 42, at 5-23 [Pl.’s Am. Compl.].)

For these violations, Plaintiff seeks sevens forms of relief: (1) a declaration that

Defendants’ acts and omissions violated (and continue to violate) Plaintiff’s constitutional rights

under the Eighth and Fourteenth Amendments, Title II of the ADA and Section 504 of the

Rehabilitation Act, and these acts and omissions cause ongoing harm; (2) an injunction that

either (a) orders Plaintiff’s release from the RMHU, or (b) ameliorate his current confinement

conditions and provide him with effective mental health treatment and programming; (3) a

judgment granting Plaintiff reasonable, actual and compensatory (including consequential)

damages from each Defendant, jointly and severally, to compensate Plaintiff for his pain and

suffering; (4) a judgment granting Plaintiff reasonable punitive damages from each Defendant;

(5) an order awarding Plaintiff costs for this action (including reasonable attorneys’ fees); (6) an

order retaining jurisdiction over this action until Defendants have fully complied with the orders

of the Court; and (7) an order granting any other relief that the Court deems just and proper. (Id.

10 Photophobia is an incurable, severe sensitivity to light, which Plaintiff developed because lights are kept on in his cell for most of the day and night.

11 In addition, Plaintiff’s mental health has deteriorated to the point where he suffers from

“anxiety, hypersensitivity, bouts of depression, delusional thinking, mood swings, hearing

voices, and sleeplessness.”

at Prayer for Relief ¶¶ 1-7.) More specifically, with respect to his Eighth Amendment claims

and Fourteenth Amendment claim, Plaintiff seeks declaratory and injunctive relief from all

Defendants who are sued in their official capacity and monetary relief from all Defendants who

are sued in their individual capacity. (Id. at ¶¶ 99-119.)

B. Parties’ Briefing on Defendants’ Motion

1. Defendants’ Memorandum of Law

Generally, in support of their motion to dismiss, Defendants make two arguments: (1) the

Amended Complaint fails to state a claim against Defendant Annucci, because its factual

allegations do not plausibly suggest Defendant Annucci’s personal involvement in the

constitutional violations alleged through his knowledge about Plaintiff’s circumstances or that

Plaintiff’s placement was improper; and (2) the Amended Complaint fails to state an ADA claim

or Rehabilitation Act claim against Defendants Annucci, O’Gorman, and Bellnier, because (a)

there is no individual liability under the ADA or the Rehabilitation Act, regardless of whether an

individual is sued in his official or individual capacity, and (b) alternatively, the Amended

Complaint fails to allege facts plausibly suggesting a causal connection between Plaintiff’s

disability and the adverse decision to continue his Ad Seg status, given that it plausibly suggests

that he was placed in confinement due to his dangerous behavior, not due to his mental health

condition. (See generally Dkt. No. 48, Attach. 1 [Defs.’ Mem. of Law].)

2. Plaintiff’s Opposition Memorandum of Law

Generally, in his opposition memorandum of law, Plaintiff makes two arguments: (1) the

Amended Complaint states a claim against Defendant Annucci because (a) it plausibly suggests

Defendant Annucci’s personal involvement in the alleged constitutional violations through his

knowledge of ongoing constitutional violations in Ad Seg (based on the nature of longstanding,

pervasive, well-documented, noted information of general issues surrounding confinement by

prison officials, and the fact that he has been a defendant in numerous lawsuits regarding this

same issue), (b) Plaintiff was denied basic human needs while in solitary confinement, and (c)

Defendant Annucci should not be dismissed from this action because he is sued only in his

official capacity and a defendant may be sued in his official capacity for injunctive relief; and (2)

the Amended Complaint states valid claims under the ADA and Rehabilitation Act, because (a)

injunctive relief is available under the ADA and Rehabilitation Act, as indicated by case law and

the fact that this Court has allowed other claims like this to prevail, and (b) Plaintiff has alleged

facts plausibly suggesting that he has been denied reasonable accommodation with respect to

treatment of his disabilities while in prison. (See generally Dkt. No. 50 [Pl.’s Opp’n Mem. of

Law].)

3. Defendants’ Reply Memorandum of Law

Generally, in their reply memorandum of law, Defendants make two arguments: (1) the

Amended Complaint does not state a claim against Defendant Annucci because Plaintiff fails to

allege facts plausibly suggesting that Defendant Annucci had actual knowledge of Plaintiff’s

circumstances and his constitutional deprivations, and instead, relies on irrelevant case law to

support his Eighth and Fourteenth Amendment claims; and (2) the ADA claim and

Rehabilitation Act claim are deficient because it is well established that there is no individual

liability under the ADA or the Rehabilitation Act, regardless of whether the individual is sued in

his official or individual capacity. (See generally Dkt. No. 55 [Defs.’ Reply Mem. of Law].)

II. RELEVANT LEGAL STANDARDS

A. Standard Governing Motions to Dismiss for Failure to State Claim

It has long been understood that a dismissal for failure to state a claim upon which relief

can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:

(1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a

challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d

204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de

novo review).

Because such dismissals are often based on the first ground, some elaboration regarding

that ground is appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a

pleading contain "a short and plain statement of the claim showing that the pleader is entitled to

relief." Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between

permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement

to relief is often at the heart of misunderstandings that occur regarding the pleading standard

established by Fed. R. Civ. P. 8(a)(2).

On the one hand, the Supreme Court has long characterized the “short and plain”

pleading standard under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F.

Supp.2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has

held that, by requiring the above-described "showing," the pleading standard under Fed. R. Civ.

P. 8(a)(2) requires that the pleading contain a statement that "give[s] the defendant fair notice of

what the plaintiff’s claim is and the grounds upon which it rests." Jackson, 549 F. Supp.2d at

212, n.17 (citing Supreme Court cases) (emphasis added).12

The Supreme Court has explained that such fair notice has the important purpose of

“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper

decision on the merits” by the court. Jackson, 549 F. Supp.2d at 212, n.18 (citing Supreme

12 Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v.

Artuz, 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine

Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, C.J.).

Court cases); Rusyniak v. Gensini, 629 F. Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby,

J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed,

the “liberal” notice pleading standard "has its limits." 2 Moore’s Federal Practice § 12.34[1][b]

at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions

exist holding that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak,

629 F. Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009).

Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an

appellate decision holding that a complaint had stated an actionable antitrust claim under 15

U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court

"retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),

that "a complaint should not be dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him

to relief." Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an

actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an

actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a

pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the

pleading must contain at least "some factual allegation[s]." Id. at 1965. More specifically, the

"[f]actual allegations must be enough to raise a right to relief above the speculative level [to a

plausible level]," assuming (of course) that all the allegations in the complaint are true. Id.

As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

129 S.Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for

relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense . . .. [W]here the well-pleaded facts do not permit the court to

infer more than the mere possibility of misconduct, the complaint has alleged–but it has not

show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks

and citations omitted]. However, while the plausibility standard “asks for more than a sheer

possibility that a defendant has acted unlawfully,” id., it “does not impose a probability

requirement.” Twombly, 550 U.S. at 556.

Because of this requirement of factual allegations plausibly suggesting an entitlement to

relief, “the tenet that a court must accept as true all of the allegations contained in the complaint

is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,

supported by merely conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. Similarly,

a pleading that only “tenders naked assertions devoid of further factual enhancement” will not

suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8 “demands

more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citations

omitted).

Finally, a few words are appropriate regarding what documents are considered when a

dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal

pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the

four corners of the complaint may be considered without triggering the standard governing a

motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,

(2) documents incorporated by reference in the complaint (and provided by the parties), (3)

documents that, although not incorporated by reference, are “integral” to the complaint, or (4)

any matter of which the court can take judicial notice for the factual background of the case.13

B. Standard Governing Claims Under 42 U.S.C. § 1983

Section 1983 of the Civil Rights Act of 1871 provides a civil claim for damages against

any person who, acting under color of state law, deprives another person of a right, privilege or

immunity secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983;

Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). It is well established that state prisoners are

protected by Section 1983 and may bring claims based on their deprivation of rights while

subject to confinement. Cooper v. Pate, 378 U.S. 546, 546 (1964). In a case where a prisoner is

suing prison officials based on their deprivation of rights, Section 1983 serves a dual purpose:

13 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a

pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, 10-CV-0573,

2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion to

dismiss for failure to state a claim to a motion for summary judgment is not necessary under Fed.

R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached to the

complaint or answer, [2] documents incorporated by reference in the complaint (and provided by

the parties), [3] documents that, although not incorporated by reference, are “integral” to the

complaint, or [4] any matter of which the court can take judicial notice for the factual

background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)

(explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may

consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and

documents incorporated by reference in the complaint. . . . Where a document is not

incorporated by reference, the court may neverless consider it where the complaint relies heavily

upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .

However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no

dispute exists regarding the authenticity or accuracy of the document. It must also be clear that

there exist no material disputed issues of fact regarding the relevance of the document.”)

[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,

152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as

an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation

marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72

(2d Cir. 1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or

incorporate by reference a [document] upon which it solely relies and which is integral to the

complaint,” the court may nevertheless take the document into consideration in deciding [a]

defendant's motion to dismiss, without converting the proceeding to one for summary

judgment.”) (internal quotation marks and citation omitted).

first, to deter prison officials, acting as state actors, from using their authority to deprive

prisoners of their constitutional rights, and second, to provide relief to prisoners when necessary.

Wyatt v. Cole, 504 U.S. 158, 161 (1992).

“[P]ersonal involvement of defendants in alleged constitutional deprivations is a

prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir.

1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 [2d Cir. 1991]); see also

McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977) (reiterating that, in order to award

damages under Section 1983, defendants must be personally involved in the plaintiff’s alleged

constitutional deprivation). Pursuant to this requirement, “a Section 1983 plaintiff must ‘allege a

tangible connection between the acts of the defendant and the injuries suffered.’” Austin v.

Pappas, 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008) (quoting Bass v.

Jackson, 790 F.2d 260, 263 [2d Cir. 1986]) (other citation omitted). More simply stated, a

complaint needs to allege who did what, and how that behavior is actionable under the law.

Hendrickson v. U.S. Attorney Gen., 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24,

1994). As for who did what, the Second Circuit has defined “personal involvement” to include

direct participation—the personal participation by a person who has knowledge of the facts that

make their conduct illegal—and indirect participation—the ordering or helping of others to

conduct themselves in an unlawful manner. Provost v. City of Newburgh, 262 F.3d 146, 155 (2d

Cir. 2001).

With respect to how to establish the personal involvement of supervisory officials, “a

plaintiff asserting a Section 1983 claim against a supervisory official in his individual capacity

must allege that the supervisor was personally involved in the alleged constitutional

deprivation.” Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001). This

means that “a defendant in a Section 1983 action may not be held liable for damages for

constitutional violations merely because [he or she] held a high position of authority.” Black v.

Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Grullon v. City of New Haven, 720 F.3d 133,

138 (2d Cir. 2013) (affirming a district court’s dismissal of claims against a prison officer where

the inmate-plaintiff failed to allege the officer’s personal involvement in, or awareness of, the

health and safety concerns raised by the plaintiff).

Until 2009, when the Supreme Court decided Ashcroft v. Iqbal, 556 U.S. 662 (2009)

(“Iqbal”), the Second Circuit’s general rule was that a supervisory official’s personal

involvement could have been proven by showing any five factors:

“(1) the defendant participated directly in the alleged constitutional

violation, (2) the defendant, after being informed of the violation through

a report or appeal, failed to remedy the wrong, (3) the defendant created a

policy or custom under which unconstitutional practices occurred, or

allowed the continuance of such a policy or custom, (4) the defendant was

grossly negligent in supervising subordinates who committed the wrongful

acts, or (5) the defendant exhibited deliberate indifference to the rights of

inmates by failing to act on information indicating that unconstitutional

acts were occurring.”

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (“Colon”).

However, Iqbal cast some doubt on the supervisory liability test set forth in Colon. See

Reynolds v. Barrett, 685 F.3d 193, 205 (2d Cir. 2012) (stating that the decision in Iqbal caused

conflict with the Second Circuit about the continued vitality of the supervisory liability test, but

declining to rule on the issue because it did not apply to the facts of the case).14 It was unclear in

the Second Circuit, up until recently, how exactly the Iqbal decision would affect the Colon

14 In Iqbal, after a Pakistani Muslim detainee filed suit against federal officials for

confinement based on religion, race, and/or national origin, the Supreme Court held that

“[b]ecause vicarious liability is inapplicable to … § 1983 suits, a plaintiff must plead that each

Government-official defendant, through the official’s own individual actions, has violated the

Constitution. Iqbal, 556 U.S. at 676.

test.15

In December 2020, the Second Circuit held that “there is no special rule for supervisory

liability” and, that a “plaintiff must plead and prove ‘that each [g]overnment-official defendant,

through the official’s own individual actions, had violated the Constitution.’” Tangreti v.

Bachmann, 983 F.3d 609, 616 (2d Cir. 2020) (quoting Iqbal, 129 S. Ct. at 1937) (“Tangreti”).

“‘The factors necessary to establish a [Section 1983] violation will vary with the constitutional

provision at issue’ because the elements of different constitutional violations vary.” Tangreti,

983 F.3d at 618 (quoting Iqbal, 556 U.S. at 834). Therefore, any constitutional violation brought

under Section 1983 must be established against the supervisory official directly. Tangreti, 983

F.3d at 618.

Because Tangreti was decided in December 2020, courts in this District have interpreted

it in the same way: that the new standard in Tangreti has abrogated, and completely replaced, the

factors set forth in Colon. See, e.g., Zielinski v. Annucci, 17-CV-1042, 2021 WL 2744684, at *8

(N.D.N.Y July 2, 2021) (explaining that the Second Circuit’s holding in Tangreti abrogated the

factors from Colon and catalogued the confusion over to what extent the Supreme Court’s

decision in Iqbal effected those factors); Delaney v. Perez, 19-CV-6084, 2021 WL 3038642, at

*3 (S.D.N.Y. July 16, 2021) (stating that the standards for supervisory liability set out in Colon

may not be used, as they have been replaced with the new standard set forth in Tangreti: that

15 In 2013, the Second Circuit decided two cases surrounding this issue: (1) in Grullon v.

City of New Haven, the court implied that Iqbal may have heightened the requirements for

showing a supervisor’s personal involvement (but did not directly rule on it) and (2) in Hogan v.

Fischer, 738 F.3d 509, 519 n.3 (2d Cir. 2013), the court expressed no view on the extent to

which Iqbal may have heightened the requirements for showing a supervisor’s personal

involvement. Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013). More recently, in

2019, this Court explained that the Second Circuit had not yet addressed how Iqbal affected the

standards in Colon for establishing supervisory liability, although there was some suggestion that

Iqbal may have limited the Colon factors (so that only the first and third factors listed above

could be used). Rasheen v. Adner, 356 F.Supp.3d 222, 233-34 (N.D.N.Y. 2019).

each Government-official, through the official’s own individual actions, must have violated the

Constitution); Smith v. Westchester Cnty., 19-CV-3605, 2021 WL 2856515, at *6 (S.D.N.Y. July

7, 2021) (explaining that in the context of a Fourteenth Amendment claim, the standards for

supervisory liability from Colon may not be used, and instead, a plaintiff must demonstrate,

through factual allegations, that each individual defendant meets all the elements required by the

specific claim raised by the plaintiff); Savarese v. City of New York, No. 18-CV-5956, 2021 WL

2784501, at *28 (S.D.N.Y. July 2, 2021) (stating that Tangreti repudiated Colon and established

a new standard); Hill v. Cook, 21-CV-0851, 2021 WL 2661676, at *3 (D. Conn. June 29, 2021)

(explaining that the Second Circuit adopted the holding from Iqbal in their decision in Tangreti,

so ultimately, the new standard is that each defendant must be personally aware of or disregard

the alleged constitutional violation being raised by the plaintiff).

1. Standard Governing Cruel-and-Unusual Punishment Claims Under

the Eighth Amendment

Generally, the Eighth Amendment protects against cruel and unusual punishment. U.S.

Const. amend. VIII. A person’s confinement in state prison is a form of punishment that is

subject to scrutiny under the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 345

(1981). Prison officials are required to take reasonable measures to guarantee the safety of

inmates. Farmer v. Brennan, 511 U.S. 825, 833 (1994). In particular, the Second Circuit has

found that “sentenced prisoners are entitled to ‘adequate food, clothing, shelter, sanitation,

medical care and personal safety.’” Franks v. Russo, 18-CV-1282, 2018 WL 6674293, at *9

(N.D.N.Y Dec. 19, 2018) (Suddaby, C.J.) (quoting Wolfish v. Levi, 573 F.2d 118, 125 [2d Cir.

1978], rev’d on other grounds sub nom). However, while prison officials have a duty to protect

prisoners in some capacity, not every incident causing an inmate injury translates into a

constitutional liability. Farmer, 511 U.S. at 834.

A plaintiff asserting an Eighth Amendment claim based on the conditions of his

confinement must satisfy a test comprised of an objective and subjective component. Jolly v.

Coughlin, 76 F.3d 468, 480 (2d Cir. 1996). Objectively, the inmate “must demonstrate that the

conditions of his confinement result ‘in unquestioned and serious deprivations of basic human

needs.’”16 Jolly, 76 F.3d at 480 (quoting Anderson v. Coughlin, 757 F.2d 33, 35 [2d Cir. 1985]);

see also Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017) (“the inmate must show that the

conditions [of incarceration] . . . pose an unreasonable risk of serious damage to his health,

which includes the risk of serious damage to physical and mental soundness”). Next,

subjectively, the inmate “must demonstrate that the defendants imposed those conditions with

‘deliberate indifference.’” Jolly, 76 F.3d at 468 (quoting Wilson v. Seiter, 501 U.S. 294, 297

[1991]). “Deliberate indifference” can be satisfied when a prison official has knowledge that an

inmate faces a substantial risk of harm to the inmate’s health or safety, and still disregards that

risk by failing to take reasonable measures to help. Jolly, 76 F.3d at 481; see also Farmer, 511

U.S. at 837.

In the context of an Eighth Amendment claim, to show that a defendant failed to prevent

an inmate’s harm, the plaintiff must allege two elements: (1) “conditions of confinement that

objectively pose an unreasonable risk of serious to their current or future health,” and (2) “that

the defendant acted with ‘deliberate indifference.’” Tangreti, 983 F.3d at 618-19 (quoting Vega

v. Semple, 963 F.3d 259, 273 [2d Cir. 2020]). In the same context, a government official acts

with deliberate difference when they “‘know[] of and disregard[] an excessive risk to inmate

health or safety; the official must both be aware of facts from which the inference could be

16 There is no clear test to determine what constitutes an “unquestioned” or “serious”

deprivation of human needs. Lewis v. Siwicki, 944 F.3d 427, 432 (2d Cir. 2019). Generally, a

court must look at whether the conditions would violate society’s standards of decency and

whether the conditions would or would not be among those society would typically tolerate.

Helling v. McKinney, 509 U.S. 25, 36 (1993).

drawn that a substantial risk of serious harm exists, and he must also draw the inference.’”

Vega, 963 F.3d at 273 (quoting Farmer, 511 U.S. at 837).

In addition to satisfying both requirements of the Eighth Amendment analysis, a plaintiff

must show that each defendant, through their own actions, violated plaintiff’s Eighth

Amendment rights and was personally aware of and disregarded an excessive risk to plaintiff’s

health or safety. Lee v. Cook, 21-CV-0399, 2021 WL 3055403, at *4 (D. Conn. 2021). For

example, in Tangreti, an inmate-plaintiff sued prison officials (including one supervisory

official, whose role in the underlying alleged events and subsequent liability was of primary

issue) under Section 1983 for violating her Eighth Amendment rights. See generally Tangreti,

983 F.3d at 609. There, the Second Circuit held that even if the defendant had acted negligently,

she was nonetheless not liable because the defendant lacked the subjective awareness of the risk

faced by the plaintiff. Id. at 619.

2. Standard Governing Procedural Due Process Claims Under the

Fourteenth Amendment

The Fourteenth Amendment’s Due Process Clause protects an individual’s procedural

and substantive rights. Page v. Cuomo, 478 F. Supp.3d 355, 370 (N.D.N.Y. 2020) (Hurd, J.).

Under the Due Process Clause, a prisoner “has the right not to be deprived of a protected liberty

interest without due process of law.” Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986). To

state a procedural due process claim, a plaintiff must establish two elements: “(1) that he

possessed a liberty interest and (2) that the defendants deprived him of that interest as a result of

insufficient process.” Giano v. Selsky, 238 F. Supp.3d 223, 225 (2d Cir. 2001). The amount of

process given to a plaintiff depends on three factors: (1) “the private interest that will be affected

by the official action;” (2) “the risk of erroneous deprivation of such interest through the

procedures used;” and (3) “the [g]overnment’s interest, including the function involved and the

fiscal and administrative burdens that the additional or substitute procedural requirement would

entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

In addition, prison officials are required to periodically review whether an inmate, who is

confined in Ad Seg, continues to pose a threat to the prison and therefore must stay in Ad Seg, or

whether the inmate no longer poses a threat and can be released into the prison’s general

population. Proctor v. LeClaire, 846 F.3d 597, 601 (2d Cir. 2017). The reviews exist to ensure

that the state’s interest in confining the inmate in Ad Seg is still valid and that Ad Seg is not

being used as a pretext to keep the inmate in a SHU indefinitely. Proctor, 846 F.3d at 609. To

balance these competing interests, the Second Circuit has established three criteria that the

periodic reviews must satisfy.17 Id. at 610.

First, rather than simply go through the motions of evaluating while having a pre-

ordained outcome in mind, “the reviewing prison officials must actually evaluate whether the

inmate’s Ad Seg confinement is justified.” Id. at 610. “Second, the reviewing officials must

evaluate whether the justification for Ad Seg exists at the time of the review or will exist in the

future, and consider new relevant evidence [related to changes in the prison conditions and

inmate behavior] as it becomes available.” Id. at 611. That said, prison officials are not barred

from giving significant weight to an inmate’s past behavior or conduct. In other words, the

decisionmaker “must take into account prison conditions and inmate behavior as they change

over time,” because “those changes may modify the calculus of whether the inmate presents a

current threat to the safety of the facility.” Id. Third, the officials must be approving an

inmate’s continued Ad Seg term for the actual purpose of maintaining the prison’s institutional

17 The Court notes that generally, when assessing whether a correctional facility violated an

inmate’s procedural due process rights in confining the inmate to Ad Seg, a court should focus

only on analyzing whether the defendants’ method for deciding that Ad Seg is sufficient and

may not take into account the substance of the decision to confine the inmate. Proctor, 846 F.3d

at 610.

safety and security (or another valid reason, not including punitive reasons). Id. at 611. It would

be pretextual and thus impermissible for officials to proffer that an inmate’s release from Ad Seg

would risk the prison’s safety and security, but, when in actuality, the continued Ad Seg stint

was serving “as a charade . . . to mask indefinite punishment for past transgressions.” Id.

Although these criteria highlight an inmate’s due process rights to periodic reviews while

being confined in Ad Seg, the Supreme Court has explained that inmates in administrative

segregation are entitled to only minimal due process. Hewitt, 459 U.S. at 476, abrogated in part

on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). The mandated periodic reviews are

flexible, and the decisions in those reviews can be made based on “a wide range of

administrative considerations,” including “observations of the inmate in Ad Seg, ‘general

knowledge of the prison conditions,’ misconduct charges, ongoing tensions in the prison, and

any ongoing investigations.” Proctor, 846 F.3d at 609 (quoting Hewitt, 459 U.S. at 477 n.9).

Prison officials have the final say when it comes to Ad Seg decisions, and their decisions can

“turn[ ] largely on purely subjective evaluations and on predictions of future behavior.” Hewitt,

459 U.S. at 474 (internal quotation marks and citation omitted).

Lastly, in addition to the above-described rules regarding periodic reviews, there are

rules (governed by agency policy) regarding how often prison officials must conduct periodic Ad

Seg reviews. However, because individual states govern their respective agency policies through

state procedural statutes, violations of state procedural statutes that are adjudicated with due

process defects are generally not enough to establish constitutional claims.18 See Soto v. Walker,

18 For example, in H’Shaka v. O’Gorman, 444 F. Supp.3d 355, 373 (N.D.N.Y. 2020), this

Court found no procedural due process violation where prison officials conducted periodic Ad

Seg reviews approximately every two months, as opposed to every sixty days as required by

agency policy. See also Sanders v. Gifford, 11-CV-0326, 2014 WL 5662775, at *4 (N.D.N.Y.

Nov. 4, 2014) (“[E]ven assuming that Defendant Graham deviated from state procedures or

DOCCS Directives, a violation of such rules and regulations does not, standing alone give rise to

liability under § 1983.”); Ahlers v. Nowicki, 12-CV-0539, 2014 WL 1056935, at *4 (N.D.N.Y.

44 F.3d 169, 173 (2d Cir. 1995) (noting that a violation of a state procedural statute alone

without a due process violation, “would not be enough generally to establish a constitutional

claim”).

C. Standard Governing Title II Claims Under the ADA and Section 504 Claims

Under the Rehabilitation Act

“Title II of the ADA requires that ‘no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be subjected to discrimination by any such

entity.’” Wright v. N.Y. State Dep’t of Corrs., 831 F.3d 64, 72 (2d Cir. 2016) (quoting 42 U.S.C.

§ 12132). In 1990, Congress enacted the ADA, and like the Rehabilitation Act, one of the main

goals of the ADA is to protect individuals with disabilities. 42 U.S.C. §§ 12101 et. seq. Section

504 of the Rehabilitation Act requires that “[n]o otherwise individual with a disability . . . shall,

solely by reason of her or his disability, be excluded from the participation in, be denied the

benefits of, or be subjected to discrimination under any program or activity receiving Federal

financial assistance . . . .” Wright, 831 F.3d at 72 (citing 29 U.S.C. § 794[a]).

The standards set forth in both Title II of the ADA and Section 504 of the Rehabilitation

Act “are generally the same . . . ,” and thus, the Second Circuit “‘treat[s] claims under the two

statutes identically.’” Wright, 831 F.3d at 72 (quoting Henrietta D. v. Bloomberg, 331 F.3d 261,

272 [2d Cir. 2003]); see also Graham v. Watertown City Sch. Dist., 10-CV-0756, 2011 WL

1344149, at *9 (N.D.N.Y. Apr. 8, 2011) (“The ADA and Rehabilitation Act causes of action for

failure to accommodate will be considered together”). Relevant here, both statutes apply to

protect prisoners incarcerated in state prisons. See, e.g., Pa. Dep’t of Corr. v. Yeskey, 524 U.S.

Mar. 18, 2014) (“[C]laims involving the improper adherence to proprietary facility policies are

incognizable under § 1983; only rights secured by the Constitution and federal law are

actionable under § 1983.”).

206, 213 (1998) (holding that Title II of the ADA applies to prisoners incarcerated in state

prisons); Keitt v. N.Y. State Dep’t of Corrs., 11-CV-0855, 2015 WL 2383687, at *20 (W.D.N.Y.

May 19, 2015) (holding that Section 504 of the Rehabilitation Act applies to prisoners

incarcerated in state prisons).

To establish a violation of Title II of the ADA, a plaintiff must establish three elements:

(1) the plaintiff is a qualified individual with a disability;19 (2) the defendants are subject to the

ADA; and (3) the plaintiff was denied the opportunity to participate in or benefit from

defendants’ services, programs, or activities, or were otherwise discriminated against by

defendants, based on the plaintiff’s disability.20 Henrietta D., 331 F.3d at 272. To establish a

violation of the Rehabilitation Act, the same prima facie elements apply, with the exception that,

the plaintiff must also show that the defendants receive federal funding. Id.

Generally, under the ADA and Rehabilitation Act, a state official may not be sued in

their individual capacity. Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d

Cir. 2001) (“Insofar as Garcia is suing the individual defendants in their individual capacities,

neither Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity

suits against state officials.”).

19 A “qualified individual” is one “with a disability who, with or without reasonable

modifications to rules, policies, or practices, the removal of architectural communication, or

transportation barriers, or the provision of auxiliary aids and services, meets the essential

eligibility requirements for the receipt of services or the participation in programs or activities

provided by a public entity.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (quoting 42

U.S.C. § 12131[2]). More specifically, the ADA defines “disability” as “(A) a physical or

mental impairment that substantially limits one or more of the major life activities of such

individual; (B) a record of such an impairment; or (C) being regarded as having such an

impairment (as described in paragraph [3]).” 42 U.S.C. § 12102(1).

20 To establish the third element, the qualified individual can base their claim of

discrimination on any of three available theories: (1) intentional discrimination (in other words,

disparate treatment); (2) disparate impact; or (3) failure to make reasonable accommodation.

Fulton, 591 F.3d at 43; see also Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565, 573 (2d

Cir. 2003).

In the Second Circuit, it is unsettled whether an individual defendant can be sued in their

official capacity to defend against ADA or Rehabilitation Act claims. See Monroe v. Gerbing,

16-CV-2818, 2017 WL 6614625, at *15 (S.D.N.Y. Dec. 27, 2017) (collecting cases illustrating

the inconsistent holdings as to whether individuals, in their official capacity, can be sued under

the ADA or Rehabilitation Act). On one hand, generally, some district courts within the Second

Circuit have held that the ADA and Rehabilitation Act do not provide for liability against

defendants in their official capacities. Monroe, 2017 WL 6614625, at *15. In limited instances,

the Second Circuit has allowed “an ADA claim for damages against a state (or state agency or

official)” to proceed but only “if the plaintiff can establish that the Title II violation was

motivated by either discriminatory animus or ill will due to disability.” Id; Garcia, 280 F.3d at

112. On the other hand, some district courts within the Second Circuit have allowed for a

defendant to be sued in their official capacity under the ADA and Rehabilitation Act for

injunctive relief, but not for damages. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)

(permitting a claim against individual defendants to be asserted only if the plaintiff was seeking

injunctive relief). Under the ADA, an individual can be sued for injunctive relief in their official

capacity because the individual is effectively a “public entity” where “the government is the real

party in interest in an official capacity suit.” Henrietta D., 331 F.3d at 288.

III. ANALYSIS

A. Whether the Amended Complaint Alleges Facts Plausibly Suggesting the

Personal Involvement of Defendant Annucci

After carefully considering the matter, the Court answers this question in the negative for

the reasons stated in Defendants’ memoranda of law. (Dkt. No. 48, Attach. 1, at 5-6 [Defs.’

Mem. of Law]; Dkt. No. 55, at 3-6 [Defs’ Reply Mem. of Law].) To those reasons, the Court

adds the following analysis.

“An individual cannot be held liable for [monetary] damages under [Section] 1983

‘merely because he held a high position of authority,’ but can be held liable if he was personally

involved in the alleged [constitutional rights] deprivation.” Back v. Hastings on Hudson Union

Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) (quoting Black v. Coughlin, 76 F.3d 72, 74 [2d

Cir. 1996]). Therefore, to survive this aspect of Defendants’ motion to dismiss, Plaintiff must

establish Defendant Annucci’s personal involvement in the alleged conduct resulting in

Plaintiff’s constitutional rights deprivation.

1. Eighth Amendment Claims

As noted above in Part II.C. of this Decision and Order, in the context of an Eighth

Amendment claim, to establish a supervisor-defendant’s personal involvement, Plaintiff must

establish that Defendant Annucci violated the Eighth Amendment by Annucci’s own conduct,

not by reason of Defendant Annucci’s supervision of others who committed the violation.

Plaintiff must show that Defendant Annucci himself “acted with ‘deliberate

indifference’”—meaning that Defendant Annucci personally knew of and disregarded an

excessive risk to Plaintiff’s health or safety. Vega, 963 F.3d at 273 (quoting Farmer, 511 U.S. at

834). Plaintiff cannot rely on a separate test of liability specific to supervisors. Tangreti, 983

F.3d at 619; see also Whitson v. Stone Cnty. Jail, 602 F.3d 920, 928 (8th Cir. 2010) (“These

defendants are thus liable only if they personally displayed deliberate indifference to the risk that

[the inmate] would be assaulted [or harmed.]”)

Here, Plaintiff does not allege facts plausibly suggesting that Defendant Annucci created

or knew about the conditions experienced by Plaintiff, or that Defendant Annucci knew about

Plaintiff’s complaints regarding those conditions. Plaintiff also fails to allege facts plausibly

suggesting that Defendant Annucci knew how long Plaintiff personally had been confined in the

SHU (that could lead Defendant Annucci to plausibly believe that Plaintiff was experiencing a

grossly disproportionate sentence).

Instead, Plaintiff alleges that, because Defendant Annucci is currently the Acting

Commissioner of DOCCS, Defendant Annucci is responsible for overall management and

operation of DOCCS, has final policy-making and supervisory authority within DOCCS, and has

been responsible for authorizing and maintaining general policies and customs in question by

Plaintiff. (See generally Dkt. No. 42 [Pl.’s Am. Compl.].) “‘[L]inkage in the prison chain of

command’ is insufficient” to implicate a state supervisory official in a Section 1983 claim.

Hernandez v. Keane, 341 F.3d 137, 144-45 (2d Cir. 2003) (quoting Ayers v. Coughlin, 780 F.2d

205, 210 [2d Cir. 1985]); see also Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003)

(“[M]ere linkage in the prison chain of command is insufficient to implicate a state

commissioner of corrections or a prison superintendent in a [Section] 1983 claim.” [internal

quotation marks omitted]). These alleged facts merely provide background regarding Defendant

Annucci’s job duties, but in no way plausibly suggest that Defendant Annucci had subjective

knowledge of Plaintiff’s living conditions. As a result, liberally construed, these facts plausibly

suggest only that Defendant Annucci is a high-ranking officer within DOCCS with high-level

authority to control general policies.21

21 See, e.g., Lee v. Cook, 21-CV-0399, 2021 WL 3055403, at *4 (D. Conn. July 20, 2021)

(dismissing an Eighth Amendment claim against a prison official, where plaintiff alleged prison

official’s response to the COVID-19 pandemic was inadequate, explaining that, while the inmate

identified generally deficient policies instituted by the prison official in response to the

pandemic, the inmate did not allege that the officer had any subjective knowledge that the

policies posed a risk of harm to inmate specifically); Gunn v. Annucci, 20-CV-2004, 2021 WL

1699949, at *7 (S.D.N.Y. Apr. 29, 2021) (dismissing an Eighth Amendment claim against

Defendant Annucci where the plaintiff failed to allege facts plausibly suggesting Defendant

Annucci’s personal involvement contributed to a substandard prison atmosphere); Russell v.

Stanford, 21-CV-0296, 2021 WL 1565147, at *5 (N.D.N.Y. Apr. 21, 2021) (Suddaby, C.J.)

(dismissing claims against Defendant Annucci for lack of personal involvement in the alleged

unconstitutional conduct); Murphy v. Spaulding, 20-CV-9013, 2020 WL 7248855, at *3

(S.D.N.Y. Dec. 7, 2020) (explaining that an officer who had created an atmosphere that allowed

Plaintiff contends that, based on earlier litigation brought by other inmates claiming

similar Eighth Amendment violations and a settlement agreement entered into by DOCCS in

2016,22 Defendant Annucci developed an awareness and knowledge of the general risk that

inmates face in Ad Seg, and that, given his awareness and position of power, Defendant Annucci

failed to remedy the unconstitutional policies and practices that enabled Plaintiff’s Ad Seg term

of confinement. (See generally Dkt. No. 42 [Pl.’s Am. Compl.].)

Courts within this Circuit have considered whether “knowledge of prior lawsuits may

apprise defendants of the existence of a constitutional deficient conditions or policies,

particularly when accompanied by sufficient details of the lawsuit and their relation to the

current allegations.” Constant v. Prack, 16-CV-3985, 2019 WL 3287818, at *8 (S.D.N.Y. July

19, 2019) (collecting cases). Although courts within this Circuit have recognized that prior

lawsuits are relevant to showing a custom or practice, they usually require more lawsuits than

the number alleged here. See Edwards v. City of New York, 14-CV-10058, 2015 WL 5052637, at

*6 n.3 (S.D.N.Y. Aug. 27, 2015) (noting that the complaint included citations to eighteen

lawsuits filed between 1999 and 2011); McCants v. City of Newburgh, 14-CV-0556, 2014 WL

6645987, at *4 (S.D.N.Y. Nov. 21, 2014) (denying motion to dismiss where plaintiff cited

seventeen similar lawsuits).

constitutional violations to occur was insufficient to allege that officer’s personal involvement);

Haywood v. Annucci, 18-CV-10913, 2020 WL 5751530, at *5 (S.D.N.Y. Sept. 25, 2020)

(holding that the plaintiff failed to offer factual allegations that Defendant Annucci was present

for, or knew of, the alleged constitutional violation).

22 The Court notes that, in Peoples v. Annucci, 180 F. Supp.3d 294, 297-98 (S.D.N.Y.

2016), as part of a settlement agreement, DOCCS agreed to reevaluate its policies that would

lead to a reduction in the number of inmates confined in SHU and decrease the length of time

that an inmate could spend in SHU (“Peoples Settlement”). However, Plaintiff began his Ad

Seg confinement on or about April 17, 2006—approximately ten years prior to the effective date

of the Peoples Settlement. (Dkt. No. 42, at 10 [Pl.’s Am. Compl.].)

In addition, under certain conditions, even the presence of a fairly significant number of

lawsuits has been found to be insufficient to plausibly suggest personal involvement. See, e.g.,

Calderon v. City of New York, 138 F. Supp.3d 593, 612-13 (S.D.N.Y. 2015) (finding that generic

allegations of sixteen prior lawsuits were insufficient to establish a widespread custom or

practice, or to plausibly suggest a failure to train or supervise where plaintiff failed to include

any allegations about the municipality’s response to those cited lawsuits); Tieman v. City of

Newburgh, 13-CV-4178, 2015 WL 1379652, at *16-17 (S.D.N.Y. Mar. 26, 2015) (finding that

plaintiff’s citation to nine prior lawsuits was insufficient to establish a custom or policy);

Guillory v. Cuomo, No. 14-CV-0971, 2014 WL 11173632, at *4 (N.D.N.Y. Dec. 2, 2014)

(dismissing claims where plaintiffs cited to four prior lawsuits but failed to allege how the

defendants had involvement or knowledge of the incidents included in those lawsuits).

The fact that Defendant Annucci may have been aware of general issues regarding prison

conditions and the general effect that those issues may have on inmates does not plausibly

suggest that Defendant Annucci had sufficient knowledge of the specific circumstances and

details of Plaintiff’s Ad Seg confinement. As a result, the Court finds that Plaintiff’s citation to

six prior lawsuits against DOCCS employees, some of which include Defendant Annucci, does

not suffice to plausibly suggest either the existence of a DOCCS custom or policy or the fact that

Defendant Annucci had personal knowledge of the specific circumstances regarding Plaintiff’s

Ad Seg confinement and disregarded an excessive risk to Plaintiff’s health or safety.

Additionally, the remainder of Plaintiff’s allegations (e.g., that notwithstanding Defendant

Annucci’s awareness of the unconstitutional risk of harm to inmates by confining them in Ad

Seg,23 and that notwithstanding his awareness of the risk posed to inmates in Ad Seg, Defendant

23 The Court notes that, even if Plaintiff had provided factual allegations plausibly

suggesting Defendant Annucci’s awareness of lengthy stints in Ad Seg, the Second Circuit and

other courts within this Circuit have repeatedly upheld the typical conditions of SHU or Ad Seg

Annucci failed to modify policies and procedures that would ensure [1] Plaintiff not be placed in

isolation for extended periods of time thereby preventing the exacerbation of his mental health

symptoms, and [2] Plaintiff be offered adequate out-of-cell time, social interaction, and

environmental stimulation) are too conclusory and unsupported by sufficient factual allegations

to plausibly suggest personal involvement by Defendant Annucci. See Rodriguez v. City of New

York, 649 F. Supp.2d 301, 308 (S.D.N.Y. 2009) (dismissing supervisory liability claim where the

plaintiff had “not provided a shred of particularization of the conclusory allegations that DA

Morgenthau ‘repeatedly failed to make any meaningful investigation into charges of

constitutional violations by its staff”).

Plaintiff appears to imply that Defendant Annucci is ultimately liable based on his

personal involvement in Plaintiff’s Eighth Amendment violations by way of the factors outlined

in Colon: specifically, the second factor—when an official, after being informed of the violation

through report or appeal, failed to remedy their wrong—and the third factor—when the official

created a policy or custom under which unconstitutional practices occurred or allowed the

continuance of a policy or custom. Colon, 58 F.3d at 873. However, Tangreti provided a new

to be constitutional. See Smith v. Annucci, 18-CV-6261, 2019 WL 539935, at *6 (W.D.N.Y. Feb

11, 2019) (“Courts in this Circuit have held as a general rule, administrative segregation

conditions, even though restrictive and harsh, are insufficient to establish Eighth Amendment

violations because they are part of the penalty that criminal offenders pay for their offenses

against society.”); Zimmerman v. Todd, 15-CV-1437, 2018 WL 4691254, at *8 (N.D.N.Y. Aug.

30, 2018) (Peebles, M.J.) (“Generally speaking, confinement in a DOCCS facility’s SHU under

ordinary conditions does not rule afoul of the Eighth Amendment’s prohibition of cruel and

unusual punishment.”), adopted by 2018 WL 4689105 (N.D.N.Y. Sept. 28, 2018) (Kahn, J.);

Booker v. Maly, 12-CV-0246, 2014 WL 1289579, at *16-17 (N.D.N.Y. Mar. 31, 2014) (report-

recommendation by Baxter, M.J., adopted by Mordue, J.) (“Restrictive SHU conditions on their

own do not per se rise to the level of cruel and unusual punishment.”).

standard for establishing personal involvement of supervisory officials like Defendant Annucci,

and therefore the Colon factors are no longer applicable to the Court’s analysis. 24

Lastly, Plaintiff argues that the subjective component of the Eighth Amendment analysis

is better addressed at the summary judgment phase. (Dkt. No. 50 at 17-18 [Pl.’s Opp’n Mem. of

Law].) The Court will not address this argument because Plaintiff has failed to allege facts

plausibly suggesting Defendant Annucci’s personal involvement in the alleged conduct giving

rise to Plaintiff’s Eighth Amendment claims.25

For all of the above reasons, the Court finds that Plaintiff is precluded from seeking relief

in the form of monetary damages stemming from his Eighth Amendment claim against

Defendant Annucci.

2. Fourteenth Amendment Claim

As noted above in Part II.D. of this Decision and Order, in the context of a Fourteenth

Amendment procedural due process claim, to allege a supervisor-defendant’s personal

involvement, Plaintiff must allege that Defendant Annucci violated the Fourteenth Amendment

by Annucci’s own conduct, and not by reason of Defendant Annucci’s supervision of others who

committed the violation. Specifically, Plaintiff must show, through factual allegations, three

things: (1) that Defendant Annucci actually evaluated whether Plaintiff’s confinement in Ad Seg

was justified; (2) that Defendant Annucci evaluated whether the justification for Ad Seg existed

at the time of the periodic review or will exist in the future, and considered new relevant

evidence related to changes in the prison conditions and inmate behavior as it became available;

24 To demonstrate Defendant Annucci’s personal involvement in the alleged Eighth Amendment violation of Plaintiff’s rights while in Ad Seg, Plaintiff

cites other cases in this District that pre-date Tangreti. (Dkt. No. 50, at 16-17 [Pl.’s Opp’n Memo. of Law].) In doing so, Plaintiff fails to acknowledge Tangreti

which (again) established a new personal involvement standard for supervisory officials.

25 Had Plaintiff established Defendant Annucci’s personal involvement, the Court agrees

with Defendants’ reading of Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002) and Guilbert v.

Sennet, 235 F. App’x 823 (2d Cir. 2007), for the reasons set forth in Defendants’ reply

memorandum of law. (Dkt. No. 55, at 4 [Defs.’ Reply Mem. of Law].)

and (3) that Defendant Annucci approved Plaintiff’s continued Ad Seg term for the actual

purpose of maintaining the prison’s institutional safety and security, not including punitive

reasons. Smith v. Westchester Cnty., 19-CV-3605, 2021 WL 2856515, at *6 (S.D.N.Y. July 7,

2021); Proctor, 846 F.3d at 611. Here, Plaintiff fails to allege facts plausibly suggesting

Defendant Annucci satisfied any of these three things.

Generally, in his Amended Complaint, Plaintiff alleges that Defendants violated his

Fourteenth Amendment right to procedural due process based on a lack of meaningful periodic

Ad Seg review. This, as Plaintiff contends, resulted in the denial of a protected liberty interest in

avoiding long-term solitary confinement. (Dkt. No. 42, at 29 [Pl.’s Am. Compl.].) Specifically,

Plaintiff alleges facts plausibly as to how Defendants John or Jane Does 1-15, O’Gorman,

Bellnier, Reardon, Thomas, Colvin, and Chappius have violated Plaintiff’s right to meaningful

review.

However, Plaintiff fails to allege specific factual instances as to Defendant Annucci’s

personal involvement in the periodic Ad Seg review process. (Id. at 29-30.) Instead of

providing factual allegations showing Defendant Annucci’s role in depriving Plaintiff of his

procedural due process rights, Plaintiff merely states that Defendant Annucci “deprived

[Plaintiff] of a protected liberty interest in avoiding long-term solitary confinement,” and that

therefore Defendant Annucci’s conduct violated Plaintiff’s procedural due process rights. (Id. at

30.) However, there is no mention of facts that demonstrate how Defendant Annucci’s own

conduct actually caused Plaintiff’s procedural due process deprivation. (See generally Dkt. No.

42 [Pl.’s Am. Compl.].)

Supervisory prison officials who merely review and affirm outcomes of prisoner

disciplinary hearings are not personally involved in the disciplinary hearing itself. See, e.g.,

Brown v. Annucci, 19-CV-9048, 2021 WL 860189, at *9 (S.D.N.Y. Mar. 8, 2021) (dismissing a

procedural due process claim against defendant whose conduct involved only denying the

reconsideration of an inmate’s disciplinary hearing); Smart v. Annucci, 19-CV-7908, 2021 WL

260105, at *5 (S.D.N.Y. Jan. 26, 2021) (“[A]ffirming the outcome of a prison hearing was not

sufficient to establish personal involvement”). Here, Plaintiff does even allege facts plausibly

suggesting that Defendant Annucci’s involvement rose to that level. In other words, Plaintiff’s

Amended Complaint does not sufficiently allege how Defendant Annucci was personally

involved in maintaining Plaintiff’s Ad Seg confinement.

For the above reasons, the Court finds that Plaintiff is precluded from seeking relief in

the form of monetary damages stemming from his Fourteenth Amendment claim against

Defendant Annucci.

B. Whether Plaintiff’s Claims Against Defendant Annucci for Injunctive Relief

Survive Defendant Annucci’s Lack of Personal Involvement

After carefully considering the matter, the Court answers this question in the affirmative

for the reasons stated in Plaintiff’s opposition memorandum of law. (Dkt. No. 50 [Pl.’s Opp’n

Mem. of Law].) To those reasons, the Court adds the following analysis.

As Plaintiff correctly argues, both his Eighth Amendment claims against Defendant

Annucci and his Fourteenth Amendment claim against Defendant Annucci survive Defendants’

motion to dismiss to the extent that those claims request injunctive relief, because personal

involvement is a prerequisite only for recovering monetary damages against government

officials sued in their official capacity. See, e.g., McKinnon v. Patterson, 568 F.2d 930, 934 (2d

Cir. 1977) (explaining that a defendant’s personal involvement in an alleged constitutional

deprivation brought under Section 1983 is a prerequisite to only an award of monetary

damages); Marinaccio v. Boardman, 02-CV-0831, 2005 WL 928631, at *9 (N.D.N.Y. Apr. 19,

2005) (McCurn, S.J.) (reiterating that courts within the Second Circuit consistently hold that a

defendant’s lack of personal involvement does not bar claims brought under Section 1983 that

seek injunctive relief); N.Y. Youth Club v. Town of Smithtown, 867 F. Supp.2d 328, 339

(E.D.N.Y. 2012) (“[P]ersonal involvement of an official sued in his official capacity is not

necessary where the plaintiff is seeking only injunctive or declaratory relief under [Section]

1983.”).

Although the Court finds (based on the current record) that Defendant Annucci was not

personally involved in the alleged conduct giving rise to Plaintiff’s Eighth Amendment claims

and Fourteenth Amendment claim, Plaintiff may seek injunctive relief as to those claims against

him.

C. Whether Plaintiff’s ADA Claim and Rehabilitation Act Claim Can Be

Brought Against Defendants Annucci, Bellnier, and O’Gorman in Their

Official Capacities

As stated above in Part I.B. of this Decision and Order, generally, in support of their

motion to dismiss of the ADA claim and Rehabilitation Act claim, the DOCCS Commissioner

Defendants make two alternative arguments: (1) as a threshold matter, the ADA claim and

Rehabilitation Act claim should be dismissed because those two statutes do not allow an

individual to be sued, regardless of whether that individual were sued in their official or

individual capacity; and (2) in the alternative, the ADA claim and Rehabilitation Act claim

should be dismissed because they fail on the merits as a matter of law. (Dkt. No. 48, Attach. 1,

at 6-9 [Defs.’ Mem. of Law].) After carefully considering the matter, the Court agrees with the

DOCCS’ Commissioner Defendants’ alternative argument that Plaintiff’s ADA claim and

Rehabilitation claim both fail on the merits for the reasons offered by Defendants. Therefore,

the Court need not, and will not, address the DOCCS Commissioner Defendants’ threshold

argument regarding individual liability under the ADA and the Rehabilitation Act. To the

reasons offered by Defendants, the Court adds the following analysis.

As discussed above in Part II.E. of this Decision and Order, to establish a violation of

Title II of the ADA and Rehabilitation Act, a plaintiff must establish three elements: (1) the

plaintiff is a qualified individual with a disability, (2) the defendant is subject to the ADA or

Rehabilitation Act, and (3) based on the plaintiff’s disability, the plaintiff was denied the

opportunity to participate in or benefit from defendants’ services, programs, or activities, or were

otherwise discriminated against by defendants. Henrietta D. v. Bloomberg, 331 F.3d 261, 272

(2d Cir. 2003). To establish a violation of Section 504 of the Rehabilitation Act, in addition to

the three elements to establish an ADA claim, a plaintiff must also establish that the defendant

receives federal funding.26

Although Plaintiff has alleged facts plausibly suggesting the first two elements,27 the

Court finds that he has failed to allege the third element of his ADA claim and Rehabilitation

Act claim—that Plaintiff was denied the opportunity to participate in or benefit from the

DOCCS Commissioner Defendants’ services, programs, or activities, or was otherwise

discriminated against by the DOCCS Commissioner Defendants, based on Plaintiff’s disabilities.

To establish the third element of Plaintiff’s ADA claim and Rehabilitation Act claim, Plaintiff

“can base a discrimination claim on any of [the] ‘three available theories: (1) intentional

discrimination (disparate treatment); (2) disparate impact; and (3) failure to make a reasonable

accommodation.’” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (quoting Tsombanidis v.

26 The parties do not dispute that Plaintiff sufficiently alleged that DOCCS receives federal

funding. (Dkt. No. 50, at 22 [Pl.’s Opp’n Mem. of Law].)

27 The Court notes that the DOCCS Commissioner Defendants concede that Plaintiff has

alleged facts plausibly suggesting the presence of the first two elements, i.e., first, Plaintiff is a

qualified individual with a disability, and second, DOCCS is subject to the ADA. (Dkt. No. 50

at 22 [Pl.’s Opp’n Mem. of Law].)

West Haven Fire Dep’t, 352 F.3d 565, 573 [2d Cir. 2003]). In his Amended Complaint, Plaintiff

alleges that he is “qualified to participate in the services, programs, activities, and benefits

provided to incarcerated people in DOCCS custody,” and “[b]y virtue of his confinement in Ad

Seg, [Plaintiff] is precluded from participating in services, programs and activities and from

receiving any benefits provided to incarcerated people in DOCCS custody,” such as “group

recreation, meals, education, and prayer . . . .” (Dkt. No. 42, at 31 [Pl.’s Am. Compl.]; Dkt. No.

50, at 23 [Pl.’s Opp’n Mem. of Law].) As a result, Plaintiff alleges, “DOCCS Commissioner

Defendants violate the ADA by failing to make reasonable modifications to policies, practices,

or procedures when the modifications are necessary to avoid discrimination against [Plaintiff] on

the basis of his disability.” (Id.)

At the time of filing his Amended Complaint, Plaintiff was diagnosed with, among other

things, antisocial personality disorder, bipolar disorder, and schizophrenia. (Dkt. No. 42, at 31

[Pl.’s Am. Compl.].) Plaintiff’s ADA claim and Rehabilitation Act claim are based on the

DOCCS Commissioner Defendants’ alleged failure to make a reasonable accommodation. (Dkt.

No. 50, at 23-26 [Pl.’s Opp’n Mem. of Law].) Specifically, Plaintiff argues that the DOCCS

Commissioner Defendants “failed to provide reasonable accommodations to alleviate the mental

anguish felt . . . in solitary confinement and [to] minimize the impact to his mental health.” (Id.

at 24.) The Court agrees with Plaintiff’s position that the “reasonableness of an []

accommodation is a fact-specific question that often must be resolved by a factfinder” at trial.

(Id. at 23 [quoting Noll v. Int’l Bus. Machs. Corp., 787 F.3d 89, 95 (2d Cir. 2015)].) However,

the third element of Plaintiff’s ADA claim and Rehabilitation claim (being denied the

opportunity to participate in or benefit from defendants’ services, programs, or activities, or

being otherwise discriminated against by defendants, based on the plaintiff’s disability) must be

shown by two components: (1) a causal connection between the disability and the adverse

decision; and (2) the fact that the plaintiff’s disability was the sole cause of that adverse decision.

Sedor v. Frank, 42 F.3d 741, 746 (2d Cir. 1994) (citing Teahan v. Metro-North Commuter R.R.

Co., 951 F.2d 511, 517 [2d Cir. 1991]).

“Courts ‘routinely dismiss ADA suits [brought] by disabled inmates that . . . do not

allege that the inmate was treated differently because of his or her disability.’” Benyi v. New

York, 20-CV-1463, 2021 WL 1406649, at *13 (N.D.N.Y. Mar. 23, 2021) (Lovric, M.J.) (quoting

Elbert v. N.Y.S. Dep’t of Corr. Servs., 751 F. Supp.2d 590, 595 [S.D.N.Y. 2010].). Here,

Plaintiff has failed to allege facts plausibly suggesting a causal connection between his

disabilities and his alleged denial of access to DOCCS’ services, programs, or activities. In fact,

the Court finds Plaintiff’s argument to be misplaced. Granted, Plaintiff has alleged facts

plausibly suggesting that his Ad Seg confinement resulted in reduced access and participation.

However, a defendant does not violate the ADA by merely “deny[ing] an inmate’s request for

reasonable accommodations because of a reason other than his disability.” Espinal v. N.Y. State

Dep’t of Corr. Servs., 06-CV-0596, 2009 WL 799951, at *6 (N.D.N.Y. Mar. 24, 2009). Here,

Plaintiff’s Ad Seg confinement is a result of his prior behavior while in DOCCS custody, not his

disabilities.28 Specifically, Plaintiff’s Amended Complaint lacks factual allegations plausibly

suggesting that he was unable to access services, programs, or activities due to his disabilities or

how his disabilities prevented him from accessing or participating in those services, programs, or

activities. (See generally Dkt. No. 42 [Pl.’s Am. Compl.].)

28 The Court notes that Plaintiff’s Ad Seg confinement was ordered based on the following

behavior: “while appearing in Brooklyn Supreme Court, [Plaintiff] . . . leap[ed] across the

defense table and tr[ied] to grab a Court Officer’s handgun. [Plaintiff] committed this offense

while armed with a plastic homemade knife. [Plaintiff] committed this act in an attempt to

escape . . . .” (Dkt. No. 42, at 10-11 [Pl.’s Am. Compl.].)

Therefore, the Court finds that Plaintiff’s alleged denial of access to DOCCS’ services,

programs, or activities was not the result of his disabilities, and his ADA and Rehabilitation

claims therefore fail as a matter of law.29 See, e.g., Schnauder v. Gibens, 649 F. App’x 8, 11 (2d

Cir. 2017) (dismissing an ADA claim after not finding the plaintiff’s disability to be the reason

for a denial of medical services); Blandon v. Aitchison, 17-CV-0065, 2019 WL 1206370, at *11

(S.D.N.Y. Mar. 14, 2019) (dismissing an ADA claim after not finding the plaintiff’s disability to

be the reason for his mistreatment); Alster v. Goord, 745 F. Supp.2d 317, 340 (S.D.N.Y. 2010)

(same).

For these reasons, the Court grants Defendants’ motion to dismiss with regard to

Plaintiff’s ADA claim and Rehabilitation Act claim against Defendants Annucci, O’Gorman,

and Bellnier.

ACCORDINGLY, it is

ORDERED that Defendants’ motion to dismiss portions of Plaintiff’s Amended

Complaint pursuant to Fed R. Civ. P. 12(b)(6) (Dkt. No. 48) is GRANTED in part and

DENIED in part in the following respects:

(1) Plaintiff’s claims against Defendant Annucci under the Eighth and

Fourteenth Amendments for money damages are DISMISSED;

(2) Plaintiff’s claims against Defendant Annucci under the Eighth and

Fourteenth Amendments for injunctive relief SURVIVE Defendants’

motion to dismiss; and

(3) Plaintiff’s claims against Defendants Annucci, O’Gorman and Bellnier

29 The Court notes that Plaintiff has alleged facts plausibly suggesting that his disabilities

resulted from his Ad Seg confinement. (Dkt. No. 42, at 19-21 [Pl.’s Am. Compl.].)

under Title II of the ADA and Section 504 of the Rehabilitation Act are

DISMISSED.

Date: September 27, 2021

Syracuse, New York

Hon. Glenn T. Suddaby

Chief U.S. District Judg

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