# Verdi v. HLA-PE-WJN

> District Court, N.D. New York · September 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10315177

## Case

- **Court:** District Court, N.D. New York
- **Decided:** September 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10315177

## How later opinions describe it (automated extraction)

- holding that such claims, however, cannot be brought directly against the state, or a state agency, but only against state officials in their official capacities

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
VINCENT VERDI,
Plaintiff,

v. 9:22-CV-0825
(BKS/CFH)

R. FARAH, et al.,
Defendants.
APPEARANCES:
VINCENT VERDI
Plaintiff, Pro Se
19-A-2467
Shawangunk Correctional Facility
P.O. Box 700
Wallkill, NY 12589
BRENDA K. SANNES
Chief United States District Judge
DECISION AND ORDER
I. INTRODUCTION
The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff
Vincent Verdi asserting claims pursuant to 42 U.S.C. § 1983 ("Section 1983"). Dkt. No. 1
("Compl."). Plaintiff, who is incarcerated at Shawangunk Correctional Facility ("Shawangunk
C.F."), has paid the filing fee for this action.
II. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard
Pursuant to 28 U.S.C. § 1915A, a court must review any "complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee of a

governmental entity" and must "identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or . . . seeks monetary relief from a defendant who is
immune from such relief." 28 U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116
(2d Cir. 1999) (per curiam) (Section 1915A applies to all actions brought by prisoners against
government officials even when plaintiff paid the filing fee); Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007) (stating that both sections 1915 and 1915A are available to evaluate
prisoner pro se complaints).
In reviewing a pro se complaint, the court has a duty to show liberality toward pro se
litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should

exercise "extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before
the adverse party has been served and both parties (but particularly the plaintiff) have had an
opportunity to respond." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal
citations omitted). Therefore, a court should not dismiss a complaint if the plaintiff has stated
"enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "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, 556 U.S. 662, 678 (2009) (citing

2
Twombly, 550 U.S. at 556). Although the Court should construe the factual allegations in the
light most favorable to the plaintiff, "the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions." Id. "Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do

not suffice." Id. (citing Twombly, 550 U.S. at 555). "[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.'" Id. at 679 (quoting
Fed. R. Civ. P. 8(a)(2)). Rule 8 of the Federal Rules of Civil Procedure "demands more than
an unadorned, the-defendant- unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 555). Thus, a pleading that only "tenders naked assertions
devoid of further factual enhancement" will not suffice. Id. (internal quotation marks and
alterations omitted).
B. Summary of the Complaint

Plaintiff asserts allegations of wrongdoing that occurred while he was incarcerated at
Shawangunk C.F. See generally Compl. The following facts are set forth as alleged by
plaintiff in his complaint.1
Plaintiff is sixty-seven years old and "suffers from degenerative osteoarthritis[.]"
Compl. at 2. In or around October, 2021, plaintiff "submitted a sick call slip" requesting to
see defendant Dr. HLA-PE-WJN "as soon as possible." Id. Shortly thereafter, plaintiff met
with Dr. HLA-PE-WJN and "complained of excruciating pain in his left hip, and how it was
impacting his daily activities in a substantial way[.]" Id. Dr. HLA-PE-WJN "subsequently

1 Plaintiff has also attached exhibits to his complaint, which the Court has considered as part of its
sufficiency review herein. See Dkt. No. 1-1.
3
ordered that an x-ray be taken of plaintiff's left hip." Id. at 3.
In or around November, 2021, plaintiff's left hip was x-rayed at his facility. Compl. at
3. In or around February, 2022, plaintiff "was called to the infirmary for his annual physical
examination." Id. Plaintiff asked the nurse practitioner who performed the examination if his

radiological report was in his medical file. Id. The nurse practitioner "confirmed that it was,
and informed plaintiff that the radiologist had determined that [he] suffered a 9mm osseous
fragment seen inferior to the left pubic arch, consistent with an avulsion injury of the ischial
tuberosity[.]" Id. The radiologist also determined that plaintiff "suffers from degenerative
osteoarthritis of his left hip and knee." Id. The radiologist's report was completed on
December 15, 2021, and Dr. HLA-PE-WJN initialed the report on January 5, 2022. Id.
The day after plaintiff's physical exam, he submitted a sick call slip requesting an
"immediate appointment" with Dr. HLA-PE-WJN "for the purpose of discussing [his]
radiological report and the medical course of action the doctor would order to treat [him]."
Compl. at 3. Roughly one week later, plaintiff received an appointment to see Dr.

HLA-PE-WJN on April 7, 2022. Id. Plaintiff was "incredulous as to why the doctor would
schedule the appointment so far off." Id. Plaintiff "subsequently sent Dr. HLA-PE-WJN
numerous requests for an earlier appointment, explaining that his pain was getting worse and
was having a significant impact on his daily activities and life." Id. at 3-4. Dr. HLA-PE-WJN
denied each of plaintiff's requests. Id. at 4.
On April 7, 2022, plaintiff met with Dr. HLA-PE-WJN, explained his symptoms, and
asked why his requests to be seen earlier were ignored. Compl. at 4. Dr. HLA-PE-WJN
"became very defensive and berated plaintiff." Id. Dr. HLA-PE-WJN then discussed a

4
treatment plan with plaintiff, and told him "not to put any weight on his left side." Id. Plaintiff
"immediately understood that keeping his weight off his left side without tipping over would
require a cane, and asked the doctor if he would write a prescription for one." Id. Plaintiff
also asked for a prescription for a vitamin D supplement to "help [his] degenerative

osteoarthritis," and requested a "bone mineral density test" and a permit to possess a chair in
his cell. Id. at 4-5. Dr. HLA-PE-WJN denied all of plaintiff's requests, and instead "ordered
that another x-ray be taken of plaintiff's left hip." Id. at 4-5.
Following plaintiff's evaluation, he filed a grievance requesting a medical permit for a
chair. Compl. at 5. The Supervisor of the Inmate Grievance Resolution Committee ("IGRC")
recommended that plaintiff file "a Special Accommodation Request" with the prison
administration regarding the chair. Id.
On April 14, 2022, plaintiff submitted a Special Accommodation Request regarding the
chair. Compl. at 5. On April 18, 2022, Dr. HLA-PE-WJN received plaintiff's request and
"checked the boxes on the . . . form indicating that plaintiff had no physical disability or any

functional limitations." Id. Dr. HLA-PE-WJN also falsely "indicated on the form that there
was no medical record on file of plaintiff's injury." Id.
On April 27, 2022, the Deputy Superintendent for Programs (not a party) denied
plaintiff's Special Accommodation Request for the chair in his cell based on the information
provided by Dr. HLA-PE-WJN. Compl. at 6. On May 3, 2022, plaintiff "was called to the
IGRC hearing being conducted to resolve [his] grievance" regarding the medical permit for a
chair. Id. The IGRC "approved plaintiff's request for a chair . . . based on the radiological
report of plaintiff's injury and the symptoms he described." Id. Corrections Sergeant

5
Gonzalez, the IGRC's "reviewing officer," also indicated that "chairs in cells do not present
any security concerns, and . . . incarcerated individuals . . . residing in double-bunked cells
are permitted chairs." Id.
Later that day, plaintiff "appealed the IGRC decision to Superintendent McGuiness
seeking his approval of [the IGRC's] decision." Compl. at 6. Plaintiff also wrote to Dr.

HLA-PE-WJN's supervisor, defendant Deputy Superintendent for Administration at
Shawangunk C.F. Farah, to make this official "aware of plaintiff's injury and the radiological
report" and "explain[ ] how his injury was impacting his ability to walk, bend down and stand
for any length of time" without "excruciating" pain. Id. Defendant Farah never responded to
plaintiff's letter, and failed to otherwise "remedy plaintiff's concerns and direct Dr.
HLA-PE-WJN to treat plaintiff." Id. at 7.
On May 12, 2022, Superintendent McGuiness "dismissed the IGRC's decision,
ignored Sergeant Gonzalez's assessment, and denied plaintiff's request for a chair." Compl.
at 7. Superintendent McGuiness based his decision on the opinion of a facility nurse

administrator that a chair in plaintiff's cell presented a security and safety risk. Id.
On May 17, 2022, plaintiff appealed Superintendent McGuiness's decision to the
Central Office Review Committee ("CORC"). Compl. at 7. On June 3, 2022, plaintiff "sent
another letter to defendant Farah, again asking if he was going to intervene and help resolve
plaintiff's medical issue." Id. at 7-8. Defendant Farah did not respond to plaintiff's letter. Id.
at 8.
As of July 29, 2022, the filing date of this lawsuit, "plaintiff's injury has not been treated
and has gotten worse." Compl. at 8, 10. "Plaintiff's ability to perform life's basic daily
functions[,]" such as "walking, bending down, and standing for very long[,] has been seriously
6
limited and is extremely painful." Id. at 8.
Construed liberally, the complaint asserts Eighth Amendment medical indifference
claims against defendants HLA-PE-WJN and Farah in their individual and official capacities.2
Plaintiff seeks money damages and injunctive relief. Compl. at 10. For a complete
statement of plaintiff's claims, reference is made to the complaint.

C. Analysis
Plaintiff brings this action pursuant to Section 1983, which establishes a cause of
action for "the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws" of the United States. 42 U.S.C. § 1983. "Section 1983 itself creates no
substantive rights, [but] . . . only a procedure for redress for the deprivation of rights
established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted).
It is well settled that "personal 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)); Iqbal, 556 U.S. at 676. "[A] Section 1983 plaintiff must 'allege a tangible
connection between the acts of the defendant and the injuries suffered.'" Austin v. Pappas,
No. 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). "[V]icarious liability is inapplicable
to . . . § 1983 suits." Iqbal 556 U.S. at 676.

2 Although the complaint also purports to assert claims under the Fourteenth Amendment, presumably
based on Dr. HLA-PE-WJN's alleged creation of false statements in plaintiff's medical records, the Court does
not construe the complaint to assert any cognizable Section 1983 claim under this Amendment. See, e.g.,
Bloomfield v. Wurzberger, No. 9:08-CV-0619 (GLS/RFT), 2009 WL 3335892, at *5 (N.D.N.Y. Oct. 15, 2009)
(filing of a false entry in an inmate's medical records, without more, does not constitute a constitutional violation);
Cruz v. Lashway, No. 9:06-CV-0867 (GTS/RFT), 2009 WL 1734549, at *8 (N.D.N.Y. June 18, 2009) (same);
Benitez v. Locastro, No. 9:04-CV-0423 (NAM/RFT), 2008 WL 4767439, at *11 (N.D.N.Y. Oct. 29, 2008) (same).
7
1. Official Capacity Claims
The Eleventh Amendment has long been construed as barring a citizen from bringing
a suit against his or her own state in federal court, under the fundamental principle of
"sovereign immunity." U.S. Const. amend. XI ("The Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of any

Foreign State."); Hans v. Louisiana, 134 U.S. 1, 10-21 (1890); Idaho v. Coeur d'Alene Tribe
of Idaho, 521 U.S. 261, 267 (1997); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100 (1984). Eleventh Amendment immunity is lost only if Congress unequivocally
abrogates states' immunity or a state expressly consents to suit. Gollomp v. Spitzer, 568
F.3d 355, 365-66 (2d Cir. 2009). It is well-settled that Congress did not abrogate states'
immunity through Section 1983, see Quern v. Jordan, 440 U.S. 332, 343-45 (1979), and that
New York State has not waived its immunity from suit on the claims asserted in plaintiff's
complaint. See generally Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40
(2d Cir. 1977); Dawkins v. State of New York, No. 5:93-CV-1298 (RSP/GJD), 1996 WL

156764 at *2 (N.D.N.Y. 1996).
The Eleventh Amendment bars suits for damages against state officials acting in their
official capacities. See Kentucky v. Graham, 473 U.S. 159, 169 (1985) (a claim for damages
against state officials in their official capacity is considered to be a claim against the State
and is therefore barred by the Eleventh Amendment); Ying Jing Gan v. City of New York, 996
F.2d 522, 529 (2d Cir. 1993) ("To the extent that a state official is sued for damages in his
official capacity, such a suit is deemed to be a suit against the state, and the official is
entitled to invoke the Eleventh Amendment immunity belonging to the state."); Severino v.
8
Negron, 996 F.2d 1439, 1441 (2d Cir. 1993) ("[I]t is clear that the Eleventh Amendment does
not permit suit [under Section 1983] for money damages against state officials in their official
capacities.").
Accordingly, insofar as plaintiff seeks monetary damages under Section 1983 against
either defendant in his official capacity, such claims are dismissed with prejudice pursuant to

28 U.S.C. § 1915A(b) as barred by the Eleventh Amendment.3
2. Eighth Amendment Claims
Claims that prison officials have intentionally disregarded an inmate's medical needs
fall under the umbrella of protection from the imposition of cruel and unusual punishment
afforded by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 102, 104 (1976). The
Eighth Amendment prohibits punishment that involves the "unnecessary and wanton infliction
of pain" and is incompatible with "the evolving standards of decency that mark the progress
of a maturing society." Id.; see also Whitley v. Albers, 475 U.S. 312, 319 (1986) (citing, inter
alia, Estelle). While the Eighth Amendment does not mandate comfortable prisons, neither

does it tolerate inhumane treatment of those in confinement. Farmer v. Brennan, 511 U.S.
825, 832 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).
"In order to establish an Eighth Amendment claim arising out of inadequate medical

3 In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court established an exception to state
sovereign immunity in federal actions where an individual brings an action seeking injunctive relief against a
state official for an ongoing violation of law or the Constitution. Under the doctrine, a suit may proceed against a
state official in his or her official capacity, notwithstanding the Eleventh Amendment, when a plaintiff, "(a) alleges
an ongoing violation of federal law, and (b) seeks relief properly characterized as prospective." See In re Deposit
Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007) (quotations and citations omitted); see also Santiago v. New York
State Dep't of Corr. Serv., 945 F.2d 25, 32 (2d Cir. 1991) (holding that such claims, however, cannot be brought
directly against the state, or a state agency, but only against state officials in their official capacities). The Court
makes no determination, at this point, whether plaintiff's request for a "medical remedy" to address his "serious
injury" constitutes prospective injunctive relief.
9
care, a prisoner must prove 'deliberate indifference to [his] serious medical needs.'" Chance
v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle, 429 U.S. at 104). "The
standard of deliberate indifference includes both subjective and objective components." Id.
"First, the alleged deprivation must be, in objective terms, sufficiently serious."

Chance, 143 F.3d at 702 (internal quotation marks and citations omitted). "Determining
whether a deprivation is an objectively serious deprivation entails two inquiries[:] [1] . . .
whether the prisoner was actually deprived of adequate medical care[; and 2] . . . whether the
inadequacy in medical care is sufficiently serious." Salahuddin v. Goord, 467 F.3d 263, 279-
80 (2d Cir. 2006) (citations omitted).
The first inquiry requires examining "whether the prisoner was actually deprived of
adequate medical care." Salahuddin, 467 F.3d at 279. Prison officials who act "reasonably"
in response to an inmate's health risk will not be found liable because the official's duty is
only to provide "reasonable care." Id. at 279-80 (citing Farmer, 511 U.S. at 844-47).
The second inquiry under the objective component of the claim is whether the

purported inadequacy in the medical care is "sufficiently serious." Salahuddin, 467 F.3d at
280. If the "unreasonable care" consists of a failure to provide any treatment, then the court
must examine whether the inmate's condition itself is "sufficiently serious." Id. (citing Smith v.
Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003)). A condition is "sufficiently serious" in
objective terms if it presents "a condition of urgency, one that may produce death,
degeneration, or extreme pain exists." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.
1996).
"Where a plaintiff alleges that inadequate care was provided—instead of alleging a

10
failure to provide any treatment—the inquiry focuses on 'the particular risk of harm faced by a
prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's
underlying medical condition, considered in the abstract.'" Revels v. Corr. Med. Care, Inc.,
No. 9:17-CV-0088 (MAD/TWD), 2018 WL 1578157, at *4 (N.D.N.Y. Mar. 28, 2018) (quoting
Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003)); Salahuddin, 467 F.3d at 280 (noting

that although courts speak of a "serious medical condition" as the basis for a constitutional
claim, the seriousness of the condition is only one factor in determining whether the
deprivation of adequate medical care is sufficiently serious to establish constitutional liability
(citation omitted)).
With respect to the subjective component of a medical indifference claim, a plaintiff
must show that the defendant "act[ed] with a sufficiently culpable state of mind," Chance,
143 F.3d at 702 (internal quotation marks and citations omitted); that is, the plaintiff must
demonstrate that the defendant "kn[ew] of and disregard[ed] an excessive risk to inmate
health or safety." Farmer, 511 U.S. at 837; see also Blyden v. Mancusi, 186 F.3d 252, 262

(2d Cir. 1999) (With respect to the subjective element, a plaintiff must also demonstrate that
defendant had "the necessary level of culpability, shown by actions characterized by
'wantonness.'"); Hathaway, 37 F.3d at 68 (holding that "the fact that [defendant] frequently
examined [plaintiff does not] necessarily vindicate [defendant]" where "[t]he course of
treatment [plaintiff] received clearly did not alleviate his suffering").
At this very early stage of the proceeding, and mindful of the Second Circuit's direction
that a pro se plaintiff's pleadings must be liberally construed, see e.g. Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court finds that plaintiff's Eighth

11
Amendment claim against Dr. HLA-PE-WJN survives sua sponte review and requires a
response. In so ruling, the Court expresses no opinion as to whether this claim can
withstand a properly filed dispositive motion.
The Court, however, reaches a different conclusion with respect to defendant Farah.
The Second Circuit recently clarified that "there is no special rule for supervisory liability."

Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). Instead, "a plaintiff must plead and
prove that each Government-official defendant, through the official's own individual actions,
has violated the Constitution.'" Id. (quoting Iqbal, 556 U.S. at 676). Thus, in the context of
an Eighth Amendment claim against a supervisory official, a plaintiff must establish that the
supervisory official himself "acted with deliberate indifference—meaning that [the official]
personally knew of and disregarded an excessive risk to [the plaintiff's] health or safety." Id.
at 619 (internal quotation marks and citation omitted).
Here, the complaint alleges only that plaintiff sent letters to defendant Farah regarding
Dr. HLA-PE-WJN's alleged wrongdoing, to which he never received a response. In light of

Tangreti, these allegations are insufficient to plausibly suggest that defendant Farah was
personally involved in the alleged wrongdoing. See, e.g., Quirk v. DiFiore, No. 20-CV-5027,
2022 WL 268976, at *3 (S.D.N.Y. Jan. 28, 2022) (dismissing Section 1983 claim against
Chief Judge DiFiore where complaint alleged only that this official failed to respond to a letter
sent to her by the plaintiff on one occasion, which is insufficient to plausibly suggest her
personal involvement in the alleged constitutional violation); Tripathy v. Schneider, No.
21-CV-6392, 2021 WL 4504461, at *3 (W.D.N.Y. Oct. 1, 2021) (dismissing Section 1983
claim against Commissioner of New York State Department of Corrections and Community

12
Supervision and Governor of New York where complaint alleged only that these officials
"failed to respond" to plaintiff's complaints of wrongdoing, noting that "the failure to respond
to letters protesting unconstitutional actions and/or requesting an investigation is, without
more, insufficient to establish personal involvement"); Peck v. Cnty. of Onondaga, New York,
No. 5:21-CV-651, 2021 WL 3710546, at *10 (N.D.N.Y. Aug. 20, 2021) ("Peck's allegation that

Conway failed to remedy the discriminatory conduct against her at the Sheriff's Office after
June 18, 2020 essentially argues that he was deliberately indifferent to an ongoing violation. .
. . Yet Tangreti demands more. . . . Plaintiff must allege that Conway actively participated in a
constitutional violation, and this allegation does not further that end."), reconsideration
denied, 563 F. Supp. 3d 18 (N.D.N.Y. 2021); Fabrizio v. Smith, No. 9:20-CV-0011 (GTS/ML),
2021 WL 2211206, at *10 (N.D.N.Y. Mar. 10, 2021) ("In the Complaint, Plaintiff alleged that
Mauro and Smith were personally involved because they failed to remedy ongoing First
Amendment violations after becoming aware of the retaliation through grievances and
appeals. . . . In light of Tangreti, Plaintiff's attempt to plead personal involvement based upon

the denial of a grievance and/or appeals, lacks merit because it does not plausibly suggest
'[t]he factors necessary to establish' a First Amendment retaliation claim."), report and
recommendation adopted by 2021 WL 2211023 (N.D.N.Y. June 1, 2021); cf. McCrary v.
Marks, 836 Fed. App'x 73, 74 (2d Cir. 2021) (explaining that where "the most [plaintiff]
alleged is that [defendant] received his letter and directed someone at the [agency] to
respond to it[, t]hat is clearly not enough to state a claim").
Furthermore, even before Tangreti, the law in this Circuit was clear that a supervisory
official such as defendant Farah could only be found to have been personally involved in a

13
constitutional violation under a failure-to-remedy theory if the alleged wrongdoing was
ongoing. See, e.g., Rahman v. Fisher, 607 F. Supp. 2d 580, 585 (S.D.N.Y. 2009) ("[A]
supervisor may be liable for her failure to remedy a violation only in those circumstances
where the violation is ongoing and the defendant has an opportunity to stop the violation after
being informed of it."); Harnett v. Barr, 538 F. Supp. 2d 511, 524 (N.D.N.Y. 2008) ("If the

official is confronted with a violation that has already occurred and is not ongoing, then the
official will not be found personally responsible for failing to 'remedy' a violation.").
In this case, it appears from the allegations in the complaint and documents attached
thereto that the only ongoing medical issue about which plaintiff made defendant Farah
aware was Dr. HLA-PE-WJN's alleged refusal to allow him to have a chair in his cell.4
Moreover, the allegations in the complaint and documents attached thereto make clear that
plaintiff's request for a chair in his cell was, at the time of filing, the subject of a grievance
appeal. See Compl. at 7-8. Under such circumstances, even assuming defendant Farah
received and read plaintiff's letters, and that Tangreti did not entirely eliminate supervisory

liability under a failure-to-remedy theory, defendant Farah's alleged refusal to override the
grievance process does not plausibly suggest that he acted with deliberate indifference to
plaintiff's serious medical needs. Cf. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)
("We see no reason why [the Superintendent] should have intervened in advance of [a Tier
III hearing] in which Colon was to be given the opportunity to substantiate the claim that he

4 The first letter that plaintiff sent to defendant Farah requested intervention regarding Dr.
HLA-PE-WJN's denial of his request for a chair in his cell, and expressed dissatisfaction with the treatment he
had received, and Dr. HLA-PE-WJN making a false statement regarding his medical history in response to his
request for the chair accommodation. Dkt. No. 1-1 at 14-15. Plaintiff also acknowledged in that letter that Dr.
HLA-PE-WJN scheduled him for another x-ray of his hip. Id. at 15. In the second letter, the only relief plaintiff
requested from defendant Farah was that he "grant [plaintiff's] medical permit for a chair." Id. at 16.
14
made in his letter. We therefore conclude that no reasonable jury could have held Senkowski
liable.").5
Accordingly, plaintiff's Eighth Amendment claim against defendant Farah is dismissed
pursuant to 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be
granted.

III. SERVICE
Where a plaintiff has been authorized by the Court to proceed in forma pauperis
("IFP") pursuant to 28 U.S.C. § 1915, the U.S. Marshals Service is appointed to effect service
of process of the summons and complaint on his behalf. See Fed. R. Civ. P. 4(c)(2) (U.S.
Marshal must be appointed to serve process when plaintiff is authorized to proceed in forma
pauperis); 28 U.S.C. § 1915(d) ("the officers of the court shall issue and serve all process
and perform all duties in [in forma pauperis] cases."). In this case, plaintiff has not sought to
proceed IFP. As a result, he is responsible for serving the summons and complaint on
defendant HLA-PE-WJN.

Rule 4(c) of the Federal Rules of Civil Procedure provides that "[a]t the plaintiff's
5 Insofar as the complaint may be construed to assert a claim based on inadequate medical treatment
unrelated to the refusal to accommodate plaintiff's request for a chair, the first letter that plaintiff sent to
defendant Farah indicated that Dr. HLA-PE-WJN scheduled him for another x-ray on April 7, 2022. Dkt. No. 1-1
at 14-15. In other words, assuming defendant Farah received and read plaintiff's letter, he became aware only
that plaintiff was dissatisfied with the course of treatment, as opposed to that plaintiff was not receiving any
treatment. Furthermore, plaintiff does not allege that defendant Farah is a medical professional. Thus,
defendant Farah's decision to defer to the opinion of Dr. HLA-PE-WJN regarding a recommended course of
treatment also does not, without more, plausibly suggest deliberate indifference. See, e.g., Brock v. Wright, 315
F.3d 158, 164 (2d Cir.2003) (non-medical professional's "automatic and complete deference" to complained-of
medical decision "is not, by itself, sufficient evidence" of deliberate indifference); Feliciano v. Anderson, No.
15-CV-4106, 2017 WL 1189747, at *14 (S.D.N.Y. Mar. 30, 2017) (plaintiff failed to state a claim with respect to
correctional officer because "[c]orrections officers who defer to the judgment of medical professionals are only
liable if the plaintiff pleads facts demonstrating that the 'nonmedical defendants should have challenged the
medical professionals' decisions'" (quoting Smith v. Wilson, No. 9:12-CV-01152, 2013 WL 5466857, at *9
(N.D.N.Y. Sept. 30, 2013))); Whittle v. Ulloa, No. 15-CV-8875, 2016 WL 7351895, at *5 (S.D.N.Y. Dec. 19, 2016)
("[A] non-medical administrator’s pro forma denial of a grievance based on deference to the opinions of medical
staff does not establish that non-medical administrator’s personal involvement.").
15
request, the court may order that service be made by a United States marshal or deputy
marshal or by a person specially appointed by the court." Fed. R. Civ. P. 4(c)(3). Therefore,
in order to advance the disposition of this action, plaintiff is advised that he must do one of
the following two things within thirty (30) days: (1) submit a signed and completed IFP
application, certified by an appropriate official at his current facility, for the Court to consider

in accordance with 28 U.S.C. § 1915;6 or (2) submit a motion requesting service by the
United States Marshal.
In the event plaintiff chooses the first option, the Court will evaluate whether the
plaintiff has demonstrated sufficient economic need and, in addition, whether the "three
strikes" provision of Section 1915(g) bars him from proceeding IFP. If plaintiff's IFP
application is granted, the U.S. Marshals Service will be appointed to effect service of
process of the summons and complaint on plaintiff's behalf. See 28 U.S.C. § 1915(d) ("the
officers of the court shall issue and serve all process and perform all duties in [IFP] cases.").7
If plaintiff chooses the second option, he is advised that his motion requesting service

by the United States Marshal must be accompanied by (1) payment of the service fee due to
the U.S. Marshal in full in advance by money order or certified check,8 and (2) all necessary
papers for service, including a completed U.S. Marshals Form (USM-285 Form) for

6 Certified account statements may be submitted in lieu of the completed certificate portion of the IFP
application. See 28 U.S.C. § 1915(a)(2).
7 If the IFP application is denied, plaintiff will be responsible for serving the summons and complaint.
8 Payment in cash or by personal check is not acceptable. For service by mail, the fee is $8.00 per
summons and complaint. The cost of service by mail on the remaining defendant in this action is therefore
$8.00. Plaintiff is also advised that, if initial service is unsuccessful, he will be required to pay the U.S. Marshal
any additional fee, also in advance, for subsequent service attempts according to the fee schedule set by the
U.S. Marshal.
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defendant HLA-PE-WJN, and one copy of the complaint. The service documents and
payment of the service fee should be sent to the Clerk of the United States District Court,
Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St., Syracuse, New
York 13261-7367, to be forwarded by the Clerk to the U.S. Marshal.
IV. CONCLUSION
WHEREFORE, it is hereby

ORDERED that plaintiff's Eighth Amendment claim against Dr. HLA-PE-WJN
SURVIVES sua sponte review; and it is further
ORDERED that plaintiff's Section 1983 claims for money damages against the named
defendants in their official capacity are DISMISSED with prejudice pursuant to 28 U.S.C. §
1915A(b) as barred by the Eleventh Amendment;9 and it is further
ORDERED that plaintiff's remaining Section 1983 claim is DISMISSED without
prejudice pursuant to 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may
be granted;10 and it is further

ORDERED that plaintiff must, within thirty (30) days from the date of the filing of this
Decision and Order, either (1) submit a completed and signed IFP application which has

9 Generally, when a district court dismisses a pro se action sua sponte, the plaintiff will be allowed to
amend his action. See Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999). However, an
opportunity to amend is not required where the defects in the plaintiff's claims are substantive rather than merely
formal, such that any amendment would be futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also
Pucci v. Brown, 423 Fed. App'x 77, 78 (2d Cir. 2011). Because these claims are barred by the Eleventh
Amendment, leave to amend to would be futile.
10 Should plaintiff seek to pursue this claim further, he must file an amended complaint. Any amended
complaint, which shall supersede and replace the original complaint in its entirety, must allege claims of
misconduct or wrongdoing against each named defendant which plaintiff has a legal right to pursue, and over
which jurisdiction may properly be exercised. Any amended complaint filed by plaintiff must also comply with the
pleading requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure. Plaintiff's deadline to amend
his pleading as a matter of course is set forth in Rule 15(a) of the Federal Rules of Civil Procedure.
17
been certified by an appropriate official at his facility, or (2) submit a motion requesting
service by the United States Marshal along with the service fee and the completed forms
necessary for service. The Clerk is directed to provide plaintiff with a blank IFP application
for his completion; and it is further
ORDERED that all pleadings, motions and other documents relating to this action be
filed with the Clerk of the United States District Court, Northern District of New York, 7th
Floor, Federal Building, 100 S. Clinton St., Syracuse, New York 13261-7367. Plaintiff must
comply with any requests by the Clerk's Office for any documents that are necessary to
maintain this action. All parties must comply with Local Rule 7.1 of the Northern District of
New York in filing motions. All motions will be decided on submitted papers without oral
argument unless otherwise ordered by the Court. Plaintiff is also required to promptly
notify, in writing, the Clerk's Office and all parties or their counsel of any change in
plaintiff's address; his failure to do so may result in the dismissal of this action; and it
is further
ORDERED that the Clerk of the Court shall provide plaintiff with copies of the
unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron
v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk shall serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Chae
Dated Sentember 14,2022 Prane d. a (C
Chief U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10315177. Public record. Not legal advice.