Booker v. Griffin

USDC SDNY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK DOCUMENT

ELECTRONICALLY FILED]

AMIN DOSHAWN BOOKER, DOC Ae

DATE FILED: (of ] □□□ □

Plaintiff, SSE:

-against-

THOMAS GRIFFIN, Superintendent of Green Haven No. 16-CV-0072 (NSR)

Facility; E. DEMO, DOCCS Investigator; PAUL OPINION & ORDER

CHAPPIUS, JR., Superintendent Elmira Facility; G.

KELLER, Captain at Elmira; M. KIRKPATRICK,

Superintendent of Clinton; JOHN DOE #1,

Confidential Informant; KAREN BELLAMY,

Central Office Committee Director; DONAL

VENNETTOZZI, Director of SHU,

NELSON S. ROMAN, United States District Judge

Plaintiff Amin Doshawn Booker commenced this pro se action pursuant 42 U.S.C. §

1983, alleging violations of his First, Eighth, and Fourteenth Amendment rights in connection

with his incarceration at the Green Haven Correctional Facility (“Green Haven”) and Elmira

Correctional Facility (“Elmira”), (See Second Am. Compl. (“SAC”), ECF No. 104.)

Specifically, Plaintiff alleges that Defendants retaliated against him, and he also raises various

challenges to his placement in administrative segregation and the denial of appropriate medical

care during certain periods of his incarceration.

Presently before the Court is Defendants’ partial motion dismiss the SAC pursuant to

Federal Rules of Civil Procedure Rule 12(b)(1) for lack of subject matter jurisdiction and Rule

12(b)(6) for failure to state a claim. (ECF No. 119.)

For the reasons that follow, Defendants’ partial motion to dismiss is GRANTED.

BACKGROUND

I. Factual Background

The following facts are derived from the SAC and are presumed to be true for the

purposes of this motion.

In 2015, Plaintiff, then an inmate at the Green Haven, was elected Representative

Secretary of the Inmate Liaison Committee (“ILC”). (SAC ¶ 14.) Between January and March

of that year, there were corruption issues with the corrections officers at Green Haven, and the

ILC was receiving rumors that Defendant Griffin, the Green Haven Superintendent, was

instructing officers to harm inmates. (Id. ¶¶ 17 – 18.) The ILC requested a meeting with the

Department of Corrections and Community Supervision (“DOCCS”) Commissioner Anthony

Annucci to address these rumors. (Id. ¶ 18.)

However, issues with officers at Green Haven continued. A few days after the ILC

submitted their proposed agenda for their requested meeting with Commissioner Annucci,

Plaintiff heard that a DOCCS sergeant violently slammed a telephone into pieces in the family

visit room. (Id. ¶¶ 19 – 20.) On April 9, 2015, Defendant Griffin held an ILC meeting about this

and other incidents; he denied their request to meet with the Commissioner and, of the incident

with the phone, said that it had been dropped by mistake. (Id. ¶ 23.) Four days later, Plaintiff

was told that he would be transferred from E-block to F-block, and he was removed from his

position on the ILC. (Id. ¶ 24.)

Around April 21, 2015, Plaintiff was taken to a meeting with Defendant Griffin. (Id. ¶¶

25 – 26.) Plaintiff told Defendant Griffin that he could not sit with his hands cuffed behind him

because he had pulled his back while lifting weights. (Id. ¶ 26.) Defendant Griffin proceeded to

accuse Plaintiff of “trying to go above [his] head” for trying to arrange for the ILC meeting with

the Commissioner and said that his brother was a DOCCS commissioner. (Id. ¶¶ 27 – 28.)

Defendant Griffin further threatened to send Plaintiff to a facility in upstate New York, away

from his family, and warned that he could have Plaintiff in the special housing unit (“SHU”)1

“with a push of a button.” (Id. ¶ 29.) Later that night, Defendant Demo, a DOCCS investigator,

told Plaintiff he was investigating an alleged incident of excessive force. (Id. ¶ 31.) Plaintiff

replied that he was not aware of the incident, and Defendant Demo told him Defendant Griffin

had said Plaintiff was an “uppity boy.” (Id.)

The next day, on April 22, 2015, Plaintiff was abruptly transferred to Elmira. (Id. ¶¶ 32 –

34.) Plaintiff alleges that Defendants Griffin and Chappius, longtime friends, conspired to

transfer Plaintiff to Elmira without any of his personal property or records. (Id. ¶ 38.) Shortly

thereafter, Plaintiff was served with an administrative segregation recommendation, authored by

Defendant Demo in conjunction with Defendant Griffin, falsely accusing Plaintiff of attempting

to organize an inmate demonstration and being influential within a gang. (Id. ¶¶ 36 – 37 & 45.)

The segregation recommendation included charges of which he had been exonerated and “[a]

number of misbehavior reports [Plaintiff had] never received.” (Id. ¶ 45.) Defendants Griffin’s

and Demo’s actions were in retaliation for Plaintiff’s grievances. (Id. ¶ 44.)

Following the segregation recommendation, on May 1, 2015, Defendant Kirkpatrick

commenced an administrative segregation hearing against Plaintiff. (Id. ¶ 47.) After Plaintiff

objected to the recommendation, both Defendants Demo and Griffin testified via telephone on

May 7, 2015 and May 12, 2015, respectively. (Id. ¶ 47 – 48.) The testimony of each Defendant

was inconsistent with Defendants’ written recommendation, prompting Plaintiff to request an

1 SHU confinement includes segregation for disciplinary, detention, protective, or administrative purposes. See 7

NYCRR § 301.2– 301.4. Accordingly, this Court uses the terms “administrative segregation” and “SHU”

interchangeably throughout this Opinion.

adjournment of the hearing in order to obtain documents and interview witnesses. (Id. ¶ 49 – 50.)

Defendant Kirkpatrick then allegedly violated DOCCS directives and state law by intentionally

prolonging Plaintiff’s document requests and granting numerous requests for extensions from

Defendants. (Id. ¶ 54.)

On June 4, 2015, Defendants Chappius and Griffin directed a lieutenant to “lure” Plaintiff

into a telephone conference with someone positing as a “Commissioner Gore.” (Id. ¶ 56.) The

individual on the phone identified himself as “Commissioner Gore” and asked Plaintiff about his

grievances against Defendant Griffin. (Id. ¶ 57.) Plaintiff then discussed his grievances relating

to the administrative hearing with the individual he believed to be “Commissioner Gore.” (Id.)

Plaintiff later wrote to Commissioner Gore in Albany and learned that he had not actually spoken

to Commissioner Gore over the phone. (Id. ¶ 58.)

While the administrative segregation hearing was adjourned, Defendant Kirkpatrick was

transferred to another DOCCS facility, and so Defendant Keller was assigned to “restart” the

hearing. (Id. ¶ 60.) A new hearing was eventually reconvened on July 7, 2015. (Id.) Defendant

Keller denied Plaintiff’s request for documents, did not allow Plaintiff to question witnesses, and

generally conducted the hearing in a biased manner (Id. ¶ 60 – 61.) Defendants Griffin and

Demo, who again testified at the hearing, provided testimony that was significantly different than

their previous statements before Defendant Kirkpatrick. (Id. ¶ 61.)

Defendant Keller eventually reached a disposition on August 21, 2015, agreeing with

Defendant Demo’s recommendation and sentencing Plaintiff to indefinite administrative

segregation. (Id. ¶¶ 65 & 73.) In reaching this determination, Defendant Keller relied on an

anonymous source without independently assessing that source’s credibility. (Id. ¶ 73.)

Defendants Kirkpatrick, Keller, Chappius, and Venettozzi2 confined or condoned Plaintiff’s

administrative confinement based on false charges that he had ordered the death of a corrections

officer in connection with his alleged activity with the Bloods gang, had organized a secret

Muslim society, and had planned a facility work stoppage. (Id. ¶¶ 65 – 66.) Additionally,

Plaintiff alleges that Defendants Griffin, Demo, Chappius, and Keller allowed previously

expunged charges to remain in his record. (Id. ¶ 67.)

Plaintiff repeatedly voiced his concern about his segregation hearing to Defendant

Chappius, a Superintendent at Elmira. (Id. ¶ 72.) Defendant Chappius, however, did not address

Plaintiff’s concerns, telling him: “I am going with Griffin, whatever he wants. . . I am not

reversing the determination. These are your problems, I sleep well at night.” (Id.) Plaintiff then

appealed the disposition of his administrative hearing to the DOCCS Director of Special

Housing, Defendant Venettozzi, who affirmed the disposition on November 6, 2015. (Id. ¶ 83.)

Plaintiff alleges that Defendant Venettozzi maintains a policy of using administrative segregation

as a pretext for punitive confinement. (Id. ¶¶ 75 – 76.)

Separately from the concerns raised in connection with the administrative confinement

hearing, Plaintiff also alleges that Defendants Griffin and Chappius intentionally transferred

Plaintiff to Elmira without his medical records, even though Defendant Griffin knew that

Plaintiff was suffering from a back injury. (Id. ¶ 86 – 87.) Because his medical records were not

transferred in a timely manner, Plaintiff was unable to receive his prescription allergy medication

and he suffered allergy symptoms, including swollen glands, swollen eyes, nasal congestion,

sneezing, nosebleeds, nose sores, blisters, and severe constipation. (Id. ¶¶ 88 – 89.) Moreover,

2 In the caption, this Defendant’s name is spelled “Vennettozzi.” However, throughout briefing papers and

in the 2018 Opinion, this Defendant is referred to as “Venettozzi.” Throughout this Opinion, the Court will use the

latter spelling.

Plaintiff experienced severe back pain due to his weightlifting injury and, due to lack of dental

care complications which led to the deterioration and eventual dislodgement of one of his teeth.

(Id. ¶ 89.)

II. Procedural Background

Plaintiff commenced the present action pursuant to 42 U.S.C. § 1983, alleging, inter alia,

various violations of his First, Eighth, and Fourteenth Amendment rights by officials at Green

Haven and Elmira. (ECF No. 2.) Defendants filed a motion to dismiss Plaintiff’s Complaint on

January 6, 2017, arguing that the Court lacked jurisdiction to adjudicate Plaintiff’s due process

claims pursuant to Younger v. Harris, 401 U.S. 37 (1971), and that Plaintiff had failed to state a

claim for any other constitutional violation. (ECF No. 46.) Plaintiff opposed Defendants’ motion

to dismiss and filed a cross-motion for summary judgment on his due process claims. (ECF No.

52.) The Court’s March 31, 2018 Opinion (“2018 Opinion”) on the first motion to dismiss is

described in relevant part below. After the Court’s 2018 Opinion, Plaintiff filed an Amended

Complaint on May 7, 2018. (ECF No. 83.) Four months later, he filed the SAC. Defendants

filed a partial motion to dismiss Plaintiff’s SAC on December 20, 2018.

III. 2018 Opinion

In a March 31, 2018 Opinion (“2018 Opinion”), the Court granted Defendants’ motion in

part and denied the motion in part; it also denied Plaintiff’s cross-motion for summary judgment.

The Court’s 2018 Opinion is summarized below in relevant part.

A. Due process3

3 The Court recognizes, as it did in its 2018 Opinion, that a stricter procedural due process standard may

apply because Plaintiff plausibly alleges that Defendants mislabeled his confinement as administrative when it was

in fact punitive. Booker v. Griffin, No. 16-cv-0072(NSR), 2018 WL 1614346, at *9 (S.D.N.Y. Mar. 31, 2018). This

stricter standard will apply to those due process claims that are not dismissed by this Opinion.

The Court held that Plaintiff’s prolonged administrative confinement deprived Plaintiff of

a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. Booker v.

Griffin, No. 16-cv-0072(NSR), 2018 WL 1614346, at *8 (S.D.N.Y. Mar. 31, 2018). In

determining whether Plaintiff stated a facially plausible claim that he was not afforded

constitutionally sufficient process, the Court held that Plaintiff may be entitled to stricter due

process protections because he plausibly alleged that Defendants mislabeled his confinement as

administrative when it was in fact punitive. Id. at *9.

Applying this stricter standard, the Court held that, generally, Plaintiff stated a claim he

was denied appropriate process. The activity with which he was charged at the hearing was not

outlined “with any specificity” in the segregation recommendation. Moreover, Plaintiff alleged

that Defendant Keller did not permit him to call any witnesses or present any documentary

evidence in his defense. Plaintiff also plausibly alleged that Defendant Keller’s ruling was not

supported by reliable evidence. Id. at *9 – 10.

However, the Court dismissed Plaintiff’s due process claims against certain Defendants.

The Court held that Defendant Venettozzi was entitled to qualified immunity from Plaintiff’s

claims that he violated Plaintiff’s due process rights by failing to remedy Plaintiff’s placement in

administrative confinement. Id. at *11 – 12. Qualified immunity also shielded Defendants

Griffin and Demo from Plaintiff’s claims that they fabricated charges against Plaintiff and led to

his placement in administrative segregation in violation of the due process clause. Id. at *12.

B. First Amendment retaliation claims

Defendants Griffin and Demo were not entitled to qualified immunity, however, from

Plaintiff’s First Amendment retaliation claims because it was clearly established at the time of

Defendants’ alleged actions, inmates had a protected right to assume a leadership role in filing a

broad grievance that affected many inmates. Id. at *13.

C. Deliberate indifference to medical needs claim

Although the facts in the Complaint plausibly alleged that Plaintiff had chronic and

substantial pain that disrupted his daily life, he did not allege that either Defendants Griffin or

Chappius were aware of his serious medical needs. Therefore, the Court dismissed this claim

with leave to replead. Id. at *16.

D. Equal protection claims

Plaintiff failed to plausibly allege that Defendants violated the Equal Protection Clause

because he did not identify a similarly situated comparator or plausibly allege that he was treated

differently to that comparator. The Court dismissed the claim and granted Plaintiff leave to

replead. Id. at *18.

STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion, a complaint must plead “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 is facially plausible when the factual content pleaded allows a court “to draw the

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

556 U.S. 662, 678 (2009). “While legal conclusions can provide the framework of a complaint,

they must be supported by factual allegations.” Id. at 679. In considering a 12(b)(6) motion, the

Court must take all material factual allegations as true and draw reasonable inferences in the

non-moving party’s favor, but the Court is “not bound to accept as true a legal conclusion

couched as a factual allegation.” Id. at 678 (internal quotation marks omitted). Nor must the

Court credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of

action.” Id.

Further, a court is generally confined to the facts alleged in the complaint for the

purposes of considering a motion to dismiss pursuant to 12(b)(6). Cortec Indus. v. Sum Holding

L.P., 949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider documents attached to the

complaint, statements or documents incorporated into the complaint by reference, matters of

which judicial notice may be taken, public records, and documents that the plaintiff either

possessed or knew about, and relied upon, in bringing the suit. Kleinman v. Elan Corp., plc. 706

F.3d 145, 152 (2d Cir. 2013).

As to a motion brought under Rule 12(b)(1), “[a] case is properly dismissed for lack of

subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or

constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.

2000).

“In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all

uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in

favor of the party asserting jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc.,

752 F.3d 239, 243 (2d Cir. 2014). “[T]he court may resolve the disputed jurisdictional fact

issues by referring to evidence outside of the pleadings, such as affidavits, and if necessary, hold

an evidentiary hearing.” Zappia Middle E. Const. Co. v. Emirate of Abu Dhabi, 215 F.3d 247,

253 (2d Cir. 2000). Though a court “may consider affidavits and other materials beyond the

pleadings to resolve the jurisdictional issue, [it] may not rely on conclusory or hearsay

statements contained in the affidavits.” J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110

(2d Cir. 2004).

Finally, “where, as here, a plaintiff proceeds pro se, the court must ‘construe [] [his]

[complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].’ ”

Askew v. Lindsey, No. 15-CV-7496(KMK), 2016 WL 4992641, at *2 (S.D.N.Y. Sept. 16, 2016)

(alterations in original) (citing Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013)). Yet,

“ ‘the liberal treatment afforded to pro se litigants does not exempt a pro se party from

compliance with relevant rules of procedural and substantive law.’ ” Id. (quoting Bell v. Jendell,

980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013)).

DISCUSSION

Defendants move to dismiss the following claims in from the SAC: (1) the claims that

Defendants Chappius, Kirkpatrick, Keller, Bellamy, and Venettozzi4 retaliated against Plaintiff

for the ILC complaint filed at Green Haven; (2) Plaintiff’s due process claims against Defendants

Venettozzi, Bellamy, Griffin, Demo, and Kirkpatrick; (3) any Equal Protection Clause claims;

(4) Plaintiff’s Eighth Amendment claims; and (5) Plaintiff’s state law claims. The Court

addresses each argument in turn.

As a threshold matter, the Court sua sponte5 dismisses Plaintiff’s claims against

Defendants Chappius, Keller, Bellamy, and Venettozzi in their official capacities. Under the

Eleventh Amendment, nonconsenting states are immune from suit in federal court, Sanchez v.

City of New York, 736 F. App’x 288, 290 (2d Cir. 2018), and this immunity extends beyond the

states to state agents and officials acting in their official capacities. Kentucky v. Graham, 473

4 Defendants argue that any retaliation claims against Defendants Bellamy and Venettozzi should be

dismissed, but it is unclear from the SAC whether Plaintiff intended to assert retaliation claims against those

Defendants. Regardless, any retaliation claims against Defendants Bellamy and Venettozzi would also dismissed.

First, Plaintiff failed to respond to Defendants’ motion to dismiss the retaliation claims against those Defendants in

his opposition, and therefore those claims are deemed to be abandoned. City of Perry, Iowa v. Proctor & Gamble

Co., 188 F. Supp. 3d 276, 286 (S.D.N.Y. 2016). Second, the facts in the SAC do not show that Defendants Bellamy

or Venettozzi were aware of Plaintiff’s protected activity or sufficiently establish a causal connection between the

protected activity and an adverse action by those Defendants.

5 Although Defendants did not seek dismissal of the official capacity claims raised against Defendants

Chappius, Keller, Bellamy, and Venettozzi, this Court may, due to Plaintiff’s IFP status, dismiss the claims sua

sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii). See Delano v. Rendle, No. 13-CV-0070(NAM)(TWD), 2015 WL

1506079, at *4 (N.D.N.Y. Mar. 31, 2015).

U.S. 159, 167 – 68 (1985); Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232,

236 (2d Cir. 2006)). Thus, Defendants, DOCCS employees,6 are immune from suits against

them in their official capacities in federal court.

I. Retaliation

A. First Amendment

As discussed in the Court’s 2018 Opinion, to state a First Amendment retaliation claim

that survives a motion to dismiss, a plaintiff must allege the following: (1) the plaintiff engaged

in speech or conduct that was protected by the First Amendment; (2) the defendant was aware of

that activity; (3) the defendant took adverse action against the plaintiff; and (4) there was a

causal connection between the protected speech and the adverse action. Dolan v. Connolly, 794

F.3d 290, 294 (2d Cir. 2015) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)).

Clearly, the filing of grievances and complaints is constitutionally protected activity.

Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003); Perkins v. Perez, No. 17-CV-1341(KMK),

2019 WL 1244495, at *14 (S.D.N.Y. Mar. 18, 2019) (citing cases). To qualify as an

“adverse action,” retaliatory conduct must be of a kind that “would deter a similarly situated

individual of ordinary firmness from exercising his or her constitutional rights.” Zelnik v.

Fashion Inst. of Tech., 464 F. 3d 217, 225 (2d Cir. 2006). Causal connection can be more

difficult. It can be established indirectly, through a showing of close temporal proximity

between the protected activity and the adverse employment action. See DeCintio v. Westchester

Cty. Med. Ctr., 821 F.2d 111, 116 (2d Cir. 1987). However, the Second Circuit urges caution:

[P]risoner retaliation claims are easily fabricated, and ... pose a substantial risk of

unwarranted judicial intrusion into matters of general prison administration.

Accordingly, while we have held that temporal proximity between protected

conduct and an adverse action constitutes circumstantial evidence of retaliation, we

6 The Court understands that Plaintiff also asserts claims against a John Doe, who is not a DOCCS

employee. For separate reasons, discussed in this Opinion, those claims are dismissed.

have consistently required some further evidence of retaliatory animus before

permitting a prisoner to proceed to trial on a retaliation claim.

Faulk v. Fisher, 545 F. App’x 56, 58 (2d Cir. 2013). Regardless of whether a plaintiff attempts

to establish causal connection directly or indirectly, the plaintiff must allege that the defendants

were aware of the protected activity. Pavone v. Puglisi, 353 F. App’x 622, 625 (2d Cir. 2009)

(citing Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009)).

Although Plaintiff identifies adverse actions taken against him, including his allegedly

retaliatory confinement,7 Plaintiff does not plausibly allege that Defendants Keller, Kirkpatrick,

or Chappius were aware of the ILC complaint at Green Haven and, therefore, he fails to state a

claim that those Defendants retaliated against him for that activity. Based on the SAC, each of

these Defendants worked at Elmira and not at Green Haven, the facility where Plaintiff was

involved with the ILC complaint. (See SAC ¶¶ 38, 47 & 60.) This alone would not be fatal to a

retaliation claim. However, the SAC contains no facts suggesting that Defendants Keller,

Kirkpatrick, or Chappius were aware of the complaint, and none connecting their roles in adverse

actions against Plaintiff to the complaint. At most, Plaintiff claims that Defendants Keller and

Kirkpatrick “aid[ed] and abet[ed] Griffin[‘s] retaliation and punitive confinement.” (Id. ¶ 55 &

60.) This, without any facts suggesting that they subjected Plaintiff to an adverse action because

of the protected activity, or that they even knew that Plaintiff had engaged in the protected

activity, is insufficient to support a facially plausible First Amendment retaliation claim.

7 Plaintiff also alleges that Defendant Chappius interfered with his visitation in retaliation for the ILC

complaint. (SAC ¶¶ 101 – 02.) Restrictions on visitation may, but do not necessarily, amount to an adverse action.

Compare Amaker v. Annucci, 721 F. App’x 82, 84 (2d Cir. 2018) (holding that requiring an inmate’s visitors to have

their photographs taken in order to shorten visitation time was not an adverse action), with Henderson v. Fischer,

No. 12-CV-1704(TJM)(TWD), 2015 WL 1413965, at *14 (N.D.N.Y. Mar. 18, 2015) (“The Court finds for purposes

of this motion that Graham’s temporary revocation of Plaintiff's mother’s visitation privileges constitutes adverse

action for retaliation purposes.”). Here, the Court need not determine whether the alleged restrictions on visitation

were an adverse action because, for reasons discussed infra and even assuming that the visitation inference was an

adverse action, Plaintiff failed to meet the causal connection element of the retaliation analysis.

Similarly, although Plaintiff alleges that Defendant Chappius was close friends with Defendant

Griffin, (id. ¶¶ 38 & 100) he does not indicate that Defendant Griffin told Defendant Chappius

about the complaint or that Defendant Chappius otherwise knew of the protected activity.

Accordingly, Plaintiff’s claims that Defendants Keller, Kirkpatrick, and Chappius

retaliated against him for the Green Haven ILC complaint are dismissed for failure to state a

facially plausible claim.

Plaintiff asserts a similar claim against a “John Doe,” who Plaintiff alleges provided false

testimony against him in retaliation for Plaintiff’s “exercising his rights to file grievance,

freedom of speech, & performing job duties.” (See SAC ¶ 48.) Plaintiff does not assert how or

why this unnamed Defendant, an inmate, would have been aware of Plaintiff’s protected activity.

Broadly, it is unclear why an inmate would want to retaliate against Plaintiff for filing grievances

which presumably had no effect on the inmate. Moreover, no facts in the SAC suggest a causal

connection between Plaintiff’s protected activity and the inmate’s false testimony. Accordingly,

because Plaintiff fails to state a facially plausible claim for relief against Defendant Doe, the

Court dismisses Defendant Doe from the action8 and, like in the 2018 Opinion, declines to issue

an order pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) to identify the unnamed

Defendant. Booker v. Griffin, No. 16-CV-0072(NSR), 2018 WL 1614346, at *20 (S.D.N.Y.

Mar. 31, 2018).

B. Fourteenth Amendment

An inmate’s right to file a grievance is also protected under the Fourteenth Amendment

and conduct in retaliation for filing a grievance could support a § 1983 claim for violation of the

8 Although Defendants did not request that the Court dismiss Defendant Doe, the Court may do so sua

sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) because Plaintiff is proceeding IFP.

Fourteenth Amendment. Gonzalez v. City of New York, No. 17-CV-6518(GHW), 2019 WL

1407317, at *10 (S.D.N.Y. Mar. 28, 2019). Similar to the requirements for a First Amendment

retaliation claim, to state a prima facie case for retaliation in violation of the Fourteenth

Amendment, a plaintiff must show that (1) he was engaged in protected activity; (2) the

defendant was aware of that activity; (3) the plaintiff suffered a materially adverse action; and

(4) there was a causal connection between the protected activity and that adverse action. Id.

(quoting Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014))

(internal quotation marks omitted). First and Fourteenth Amendment claims are frequently

analyzed together as they involve virtually identical elements. See, e.g., Coffman v. Alvin Cmty.

Coll., 642 F. App’x 472, 475 (5th Cir. 2016); Gierlinger v. Town of Brant, No. 13-CV-370, 2015

WL 269131, at *6 (W.D.N.Y. Jan. 21, 2015); Harnett v. Barr, 538 F. Supp. 2d 511, 523

(N.D.N.Y. 2008). Therefore, for the reasons stated supra Part I(A), Plaintiff’s Fourteenth

Amendment retaliation claims against Defendants Doe, Kirkpatrick, Keller, and Chappius are

dismissed.

II. Due process

As in his initial Complaint, in the SAC, Plaintiff contends that he was not afforded due

process before being subjected to indefinite administrative segregation in violation of the

Fourteenth Amendment Due Process Clause.9

The Fourteenth Amendment prohibits states from depriving “any person of life, liberty,

or property, without due process of law.” U.S. Const. amend. XIV. To state a procedural due

9 Plaintiff asserts that the “ad-seg report” incorporated previously adjudicated convictions and misbehavior

reports and that this raises both a res judicata and an issue preclusion concern. (SAC ¶ 64.) Res judicata bars claims

that have either been litigated or could have been litigated from being relitigated. Issue preclusion, or collateral

estoppel, bars issues that have been litigated from being re-litigated. Neither doctrine is implicated here, because

Plaintiff only alleges that the “ad-seg report” referenced those prior criminal convictions and misbehavior reports.

The SAC contains no facts which indicate that any hearing officer relitigated claims or issues from those matters.

process claim, Plaintiff must show “(1) that Defendants deprived him of a cognizable interest in

life, liberty, or property, (2) without affording him constitutionally sufficient process.” Proctor

v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017) (internal quotation marks omitted). Plaintiff’s

prolonged administrative segregation, as the Court held in the 2018 Opinion, implicates a

protected liberty interest.10 Booker v. Griffin, No. 16-CV-0072(NSR), 2018 WL 1614346, at *8

(S.D.N.Y. Mar. 31, 2018). However, Defendants argue that his due process claims against

Defendants Venettozzi, Bellamy, Griffin, Demo, and Kirkpatrick should be dismissed because

they were either not personally involved in the alleged constitutional violations, or are protected

by qualified immunity, or because Plaintiff was otherwise afforded constitutionally sufficient

process.

A. Defendant Venettozzi

Plaintiff alleges that Defendant Venettozzi violated his due process rights by

implementing a policy throughout DOCCS of using administrative segregation for indefinite

punitive confinement11 and by failing to properly train Defendants Kirkpatrick and Keller in

properly conduct for a hearing. (SAC ¶¶ 62 – 63 & 75.)

These conclusory allegations are insufficient, even under a liberal interpretation, to

support a plausible claim that Defendant Venettozzi was personally involved in the due process

violations.

10 Like in the 2018 Opinion, because the Court finds that Plaintiff has a protected liberty interest based on

the length of his administrative segregation, the Court does not reach the question of whether the particular

conditions of Plaintiff’s SHU confinement imposed any atypical and significant hardship.

11 In Plaintiff’s opposition, he states that he does not intend to reassert his claim that Defendant Venettozzi

violated the Due Process Clause by affirming the results of Plaintiff’s administrative segregation hearing. If

Plaintiff did reassert such a claim, it would be dismissed as the Court has already determined that Defendant

Venettozzi is immune from that claim. Booker v. Griffin, No. 16-CV-0072(NSR), 2018 WL 1614346, at *12

(S.D.N.Y. Mar. 31, 2018).

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

prerequisite to an award of damages under § 1983.” Blyden v. Mancusi, 186 F.3d 252, 264 (2d

Cir. 1999) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)) (internal quotation marks

omitted). Personal involvement of a defendant may include (1) direct participation by the

defendant in the alleged constitutional violation; (2) after being informed of the violation, the

defendant failed to remedy the wrong; (3) the defendant created a policy or custom under which

unconstitutional practices occurred; (4) the defendant allowed the continuance of such a policy

or custom; (5) the defendant was grossly negligent in supervising subordinates who committed

the wrongful acts; or (6) the defendant exhibited deliberate indifference to the rights of victim by

failing to act on information indicating that unconstitutional acts were occurring. Colon v.

Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (quoting Wright, 21 F.3d at 501) (internal citations

omitted)).

Plaintiff alleges that Defendant Venettozzi “maintain[ed] a policy throughout D.O.C.C.S.

of using the term ad-seg as a pretext for punitive confinement in extreme isolation units.” (SAC

¶ 75.) This allegation is conclusory and therefore insufficient to establish Defendant

Venettozzi’s personal involvement in due process violations. See Anderson v. Lalley, No. 12-

CV-6355(FPG), 2015 WL 6686586, at *6 (W.D.N.Y. Oct. 29, 2015). Plaintiff fails to allege

facts that support or suggest that Defendant Venettozzi maintained any sort of DOCCS-wide

policy or practice of this nature. The bare allegation that a defendant maintained a policy by

which a plaintiff was deprived of his constitutional rights, without facts to show that the

defendant maintained that policy, is not enough for personal involvement under § 1983.

Richardson v. Dep’t of Corr., No. 10-CV-6137(SAS), 2011 WL 710617, at *3 (S.D.N.Y. Feb.

28, 2011) (“The conclusory allegations of Fischer’s implementation of the Rules is insufficient to

establish his personal involvement in any allegedly unconstitutional custom or policy.”);

Houghton v. Cardone, 295 F. Supp. 2d 268, 276 (W.D.N.Y. 2003) (“All that plaintiff has done

here is assert the conclusion that [the defendant] was personally involved, with no supporting

factual allegations. That is not enough.”).

Further, Plaintiff’s allegation that Defendant Venettozzi failed to properly train the

hearing officers,12 without a factual connection between his alleged failure to train and Plaintiff’s

wrongful administrative confinement, is insufficient to establish personal involvement. Samuels

v. Fischer, 168 F. Supp. 3d 625, 639 (S.D.N.Y. 2016) (“A general allegation that [the

defendants] failed to train subordinates, however, is insufficient to establish personal

involvement, absent some factual connection between their failure to train and the harm that

eventually befell [the p]laintiff.”). Plaintiff merely alleges that Defendant Venettozzi did not

train, supervise, or monitor the hearing officers, that he “granted their erroneous requests for

extensions,” and that he “allowed [the hearing officers] to preside as hearing officers and render

determination depriving plaintiff of liberty without the affordance of due process.” (SAC ¶ 62 –

63.) These facts do not connect in any meaningful way Defendant Venettozzi’s alleged failure to

train the hearing officers to the result of the hearing, administrative segregation. See Gantt v.

Ferrara, No. 15-CV-7661(KMK), 2018 WL 4636991, at *6 (S.D.N.Y. Sept. 27, 2018) (holding

that the plaintiff’s allegations that the supervisory defendant failed to train or supervise were

conclusory because the plaintiff failed to explain how the defendant acted deliberately or with

reckless disregard to the plaintiff’s constitutional rights). At most, they show that Defendant

12 A failure to train allegation relating to a § 1983 claim “implicates the fourth Colon factor, i.e., that “the

defendant was grossly negligent in supervising subordinates who committed the wrongful acts” for the purposes of

personal involvement. Samuels v. Fischer, 168 F. Supp. 3d 625, 638 (S.D.N.Y. 2016).

Venettozzi allowed the hearing officers to do their jobs, to conduct a hearing and render a

determination.

B. Defendant Bellamy

Plaintiff fails to plausibly allege that Defendant Bellamy was personally involved in

violating his due process rights. Based on the face of the SAC, Defendant Bellamy is only

involved in that she denied Plaintiff’s grievances about his administrative confinement and she,

along with Defendants Keller, Venettozzi, and Chappius, “ke[pt] plaintiff punitively confined

absent a hearing or sanction.” (Id. ¶¶ 84 – 85.) General or conclusory claims that an official

denied a grievance, without more, are not sufficient to support personal involvement. See, e.g.,

Henry v. Lempke, 680 F. Supp. 2d 461, 464 (W.D.N.Y. 2010); Pugh v. Goord, 571 F. Supp. 2d

477, 515 (S.D.N.Y. 2008); Brooks v. Chappius, 450 F. Supp. 2d 220, 226 (W.D.N.Y. 2006);

Graham v. Wright, No. 01-CV-9613(NRB), 2003 WL 22126764, at *1 (S.D.N.Y. Sept. 12,

2003). Plaintiff’s claim that Defendant Bellamy kept “plaintiff punitively confined” is simply a

statement of the result of her denial of the grievances; it does not add any facts to Plaintiff’s bare

allegation that she denied his grievances.

Therefore, Plaintiff’s due process claims against Defendant Bellamy are dismissed for

lack of personal involvement.

C. Defendant Kirkpatrick

Defendants argue that Plaintiff fails to state a procedural due process claim against

Defendant Kirkpatrick because the hearing conducted by Defendant Kirkpatrick was incomplete;

the hearing that resulted in the burden on Plaintiff’s protected liberty interest was in fact

conducted by Defendant Keller. The Court agrees. The SAC contains no facts which show that

Defendant Kirkpatrick was directly involved or involved as a supervisor in the decision

confining Plaintiff to administrative confinement.13

D. Defendants Griffin and Demo

According to Defendants, Plaintiff’s due process claims against Defendants Griffin and

Demo should be dismissed because those Defendants are entitled to qualified immunity. The

Court agrees and for the same reasons articulated in its 2018 Opinion. In his SAC, Plaintiff’s

due process allegations against Defendants Griffin and Demo amounted to providing false or

misleading statements against him in their segregation recommendation and in their testimonies

at his administrative segregation hearings. (See SAC ¶¶ 45 & 48 – 49.)

As the Court held in its 2018 Opinion, in the Second Circuit, “[i]t is well-settled that a

prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly

accused of conduct which may result in the deprivation of a protected liberty interest.” Booker v.

Griffin, No. 16-CV-0072(NSR), 2018 WL 1614346, at *12 (S.D.N.Y. Mar. 31, 2018) (quoting

Velez v. Burge, 483 F. App’x 626, 628 (2d Cir. 2012)) (internal quotation marks omitted). No

reasonable officer would understand that creating a misleading segregation recommendation and

providing false testimony would violate Plaintiff’s due process rights. (Id.) Accordingly,

13 Had the SAC established Defendant Kirkpatrick’s personal involvement, there would still be no facially

plausible claim that Defendant Kirkpatrick did not afford Plaintiff constitutionally sufficient process. Plaintiff

alleges that because Defendant Kirkpatrick adjourned the hearing with Defendant Venettozzi’s approval, certain

documents Plaintiff was gathering for his defense became unavailable in the regular course of business. (SAC ¶¶ 51

– 54.) While inmates certainly have a right to present documentary evidence, Sira v. Morton, 380 F.3d 57, 69 (2d

Cir. 2004), this right does not entitle inmates to receive all documents they request. “Even when documents are

relevant and obtainable, [p]rison officials must have the necessary discretion to keep [a prison disciplinary] hearing

within reasonable limits.” Amaker v. Coombe, No. 96-CV-1622(JGK), 2002 WL 523388, at *10 (S.D.N.Y. Mar. 29,

2002) (quoting Wolff v. McDonnell, 418 U.S. 539, 566 (1974) (internal quotation mark omitted). Any argument that

Defendant Kirkpatrick violated Plaintiff’s due process rights because he did not follow DOCCS and state law

procedure in conducting Plaintiff’s administrative segregation hearing would also fail. “Federal constitutional

standards rather than state law define the requirements of procedural due process.” Russell v. Coughlin, 910 F.2d

75, 78 (2d Cir. 1990).

Plaintiff’s due process claims against Defendants Griffin and Demo based on their segregation

recommendation and testimonies during the administrative segregation hearings are dismissed.

III. Deliberate indifference to medical needs

A. Exhaustion

Under the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be brought

with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any

jail, prison, or other correctional facility until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a). “The PLRA’s exhaustion requirement ‘applies to

all inmate suits about prison life, whether they involve general circumstances or particular

episodes, and whether they allege excessive force or some other wrong.’ ” Giano v. Goord, 380

F.3d 670, 675 (2d Cir. 2004) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)). Exhausting

all remedies “means using all steps that the agency holds out, and doing so properly (so that the

agency addresses the issues on the merits).” Washington v. Chaboty, No. 09-CV-9199 (PGG),

2015 WL 1439348, at *6 (S.D.N.Y. Mar. 30, 2015) (quoting Hernandez v. Coffey, 582 F.3d 303,

305 (2d Cir. 2009)) (internal quotation marks and citations omitted). A plaintiff must invoke all

available administrative mechanisms, including appeals, “through the highest level for each

claim.” Varela v. Demmon, 491 F. Supp. 2d 442, 447 (S.D.N.Y. 2007); Veloz v. New York, 339

F. Supp. 2d 505, 514 (S.D.N.Y. 2004). In New York, this includes filing grievances, appealing

unfavorable decisions to the prison superintendent and then, if needed with the Central Office

Review Committee (“CORC”). Torres v. Carry, 672 F. Supp. 2d 338, 343 (S.D.N.Y. 2009).

New York law provides that grievances should “contain a concise, specific description of the

problem.” Espinal v. Goord, 558 F.3d 119, 126 (2d Cir. 2009) (quoting N.Y. Comp. Codes R. &

Regs., tit. 7, § 701.7(a)(1)(i)).

Defendants bear the burden of demonstrating that Plaintiff’s claim is not exhausted. Key

v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009). “[A] motion to dismiss pursuant to

Rule 12(b)(6) for failure to exhaust should be granted only if ‘nonexhaustion is clear from the

face of the complaint.’ ” Lopez v. Cipolini, No. 14-CV-2441(KMK), 2015 WL 5732076, at *4

(S.D.N.Y. Sept. 30, 2015) (citing Lovick v. Schriro, No. 12–CV–7419, 2014 WL 3778184, at *4

(S.D.N.Y. July 25, 2014)) (alterations and internal quotation marks omitted). “[B]y

characterizing non-exhaustion as an affirmative defense, the Second Circuit suggests that the

issue of exhaustion is generally not amenable to resolution by way of a motion to dismiss.”

Sloane v. Mazzuca, No. 04-CV-8266, 2006 WL 3096031, at *4 (S.D.N.Y. Oct. 31, 2006)

(internal quotation marks omitted).

Plaintiff alleges that he filed a grievance in June 2015 “about not receiving medical

treatment” and that he was told in response that because he was a Green Haven inmate and his

medical chart was not at Elmira, he could not be treated. (SAC ¶ 92.) The grievance review

committee recommended that Defendant Chappius provide Plaintiff with medical treatment; but

he did not do so and Plaintiff’s medical records were not sent to Elmira until after August 13,

2015. (Id.) According to Defendants, Plaintiff failed to exhaust this claim because he did not

specifically claim that Defendants Chappius and Griffin deliberately failed to transfer his

medical records from Green Haven. The Court disagrees and finds that, based on the face of the

SAC, Plaintiff plausibly alleged that he exhausted this claim.

At the motion to dismiss stage, the Court is required to make every reasonable inference

in favor of the nonmoving party. Further, because Plaintiff is pro se, the Court must give the

SAC a liberal interpretation. Applying these principles and accepting the facts in the SAC as

true, the Court finds that Plaintiff properly exhausted this claim. He filed a grievance about his

lack of medical care which satisfied the basic purposes of exhaustion, putting the prison on

notice of the relevant factual circumstances giving rise to a potential claim. Sulton v. Wright,

265 F. Supp. 2d 292, 298 (S.D.N.Y. 2003), abrogated on other grounds by Richardson v. Goord,

347 F.3d 431 (2d Cir. 2003). Moreover, it is clear from the grievance committee’s response that

the grievance was sufficiently specific to alert the prison that Plaintiff’s medical records had not

been transferred. A specific allegation that Defendants Griffin and Chappius intentionally failed

to transfer those medical records was not required. “[T]here does not appear to be any reason to

require a prisoner to present fully developed legal and factual claims at the administrative level.”

Id. (internal quotation mark omitted).

Accordingly, because the claims were properly exhausted, the Court will consider

whether they should none the less be dismissed under Rule 12(b)(6).

B. Merits

Under the Eighth Amendment, the infliction of “cruel and unusual punishments” is

prohibited. U.S. Const. amend. VIII. However, the Eighth Amendment has applications beyond

the disciplinary context. It “imposes a duty on prison officials to ensure that inmates receive

adequate medical care.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). In Rhodes v.

Chapman, the Supreme Court concluded that “deliberate indifference to an inmate’s medical

needs is cruel and unusual punishment rested on the fact . . . that “[a]n inmate must rely on

prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not

be met.” 452 U.S. 337, 347 (1981). To state an Eighth Amendment claim for inadequate

medical care, a plaintiff must demonstrate: (1) an objectively serious medical need, which “exists

where ‘the failure to treat a prisoner’s condition could result in further significant injury or the

unnecessary and wanton infliction of pain’ ” and (2) a subjective “deliberate indifference”

element measuring whether the prison official acted with a sufficiently culpable state of mind.

Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000).

The Court held in its 2018 Opinion that Plaintiff’s allegations (including constant pain

and months of constipation due to a lack of allergy medication and loss of a tooth due to a lack of

dental care) stated a sufficiently serious medical need. Booker v. Griffin, No. 16-CV-

0072(NSR), 2018 WL 1614346, at *16 (S.D.N.Y. Mar. 31, 2018). Plaintiff’s allegations in the

SAC remain sufficient to meet the first element of the deliberate indifference analysis. (SAC ¶¶

88 – 89 (alleging nose bleeds, sores and blisters as well as constipation, tooth loss, and severe

backpain).)

Next, the Court must determine whether Defendants Griffin and Chappius each acted

with deliberate indifference. A prison official may only be found liable if she knows of and

disregards an excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 837

(1994). “[T]he official must both be aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 834.

Simple negligence, or inadvertent failure to provide adequate medical care, even if it amounts

to medical malpractice, is not enough to plausibly allege deliberate indifference to an inmate’s

Eighth Amendment rights. Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006).

The allegations in the SAC fail to show that either Defendant Griffin or Defendant

Chappius were aware of an excessive risk to Plaintiff’s health or safety. Plaintiff alleges that at

one point, he told Defendant Griffin he could not sit with his hands cuffed behind his back

because he had pulled his back and Defendant Griffin replied with an expletive and that he did

not care about Plaintiff’s back injuries. (SAC ¶ 26.) Although Defendant Griffin’s response, if

true, was inappropriate and callous, it does not support a facially plausible claim that he was

aware of a serious medical need relating to Plaintiff’s back injury. See Sowell v. Northrop, 820

F. Supp. 2d 475, 476 (W.D.N.Y. 2011); Lloyd v. Lee, 570 F.Supp.2d 556, 569 (S.D.N.Y. 2008);

McCoy v. Goord, 255 F. Supp. 2d 233, 259 (S.D.N.Y. 2003). Moreover, Plaintiff does not allege

that Defendant Griffin was aware of his allergy issues or that he was suffering from dental

trouble. Plaintiff’s claim against Defendant Chappius is even more sparse. Plaintiff only alleges

that he “explained his medical pains & problems” to Defendant Chappius. (SAC ¶ 91.) Nothing

in this allegation suggests that Defendant Chappius was aware of an excessive risk to Plaintiff’s

health or that Defendant Chappius drew an inference from Plaintiff’s description of his medical

pains that there was a substantial risk of serious harm to Plaintiff.

To the extent that Plaintiff claims Defendants Chappius and Griffin violated the Eighth

Amendment by intentionally delaying the transfer of his medical records, such a claim would

fail. Plaintiff does not plausibly allege that either of these defendants were personally involved

in the transfer of his medical records. As discussed supra, a defendant’s personal involvement in

alleged constitutional violations and deprivations is required for an award of damages under

§ 1983. Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999) (quotations and citations omitted).

Plaintiff alleges that Defendants Griffin and Chappius were directly involved in transferring him

to Elmira and intentionally withholding his medical records, (SAC ¶ 38) but he does not provide

further facts to flesh out this allegation from a conclusory statement and an unfounded suspicion

to a plausible claim.

IV. Equal protection

Plaintiff argues that he was singled out and that Defendants denied him rights that were

provided to other inmates in violation of the Fourteenth Amendment’s Equal Protections Clause.

To state a facially plausible equal protection claim, Plaintiff must show, first, that he was

selectively treated as compared with others similarly situated and that, second, the selective

treatment was based on impermissible considerations. Booker v. Griffin, No. 16-cv-0072(NSR),

2018 WL 1614346, at *17 (S.D.N.Y. Mar. 31, 2018) (citing Tyk v. Surat, 675 F. App’x 40, 42

(2d Cir. 2017) (summ. order)). A plaintiff may also establish a facially plausible Equal

Protection Clause claim if she can show that she was “treated differently from similarly situated

individuals in circumstances where there was no rational basis for the difference in treatment

(‘class of one’).” EklecCo NewCo LLC v. Town of Clarkstown, No. 16-CV-6492(NSR), 2018

WL 3023159, at *11 (S.D.N.Y. June 18, 2018) (quoting Artec Constr. & Dev. Corp. v. City of

New York, No. 15-CV-9494 (KPF), 2017 WL 5891817, at *3 (S.D.N.Y. Nov. 28, 2017)).

Under the class of one theory, Plaintiffs must show that “(i) no rational person could

regard the circumstances of the plaintiff to differ from those of a comparator to a degree that

would justify the differential treatment on the basis of a legitimate governmental policy; and (ii)

the similarity in circumstances and difference in treatment are sufficient to exclude the

possibility that the defendants acted on the basis of mistake.” Fahs Constr. Grp., Inc. v. Gray,

725 F.3d 289, 292 (2d Cir. 2013) (internal quotation marks omitted). To succed under this

theory, plaintiffs must establish an “extremely high degree of similarity between themselves and

the persons to whom they compare themselves.” Ruston v. Town Bd. for Town of Skaneateles,

610 F.3d 55, 59 (2d Cir. 2010) (internal quotation mark omitted).

In the 2018 Opinion, the Court dismissed Plaintiff’s Equal Protection Clause claims

because Plaintiff “does not provide even a single comparator that was subject to different

treatment” and granted Plaintiff leave to replead his claim. Booker v. Griffin, No. 16-CV-

0072(NSR), 2018 WL 1614346, at *18 (S.D.N.Y. Mar. 31, 2018). After the SAC, Plaintiff again

fails to identify a similarly situated comparator, let alone an extremely similar comparator.

Plaintiff refers to an inmate Santana who was confined to administrative segregation in Elmira

from 2015 to 2016, (SAC ¶ 96), but he does not allege that Santana did not receive due process

before being placed in administrative segregation. Beyond both being inmates at Elmira and

both being confined to administrative segregation, there are no other similarities between

Plaintiff and Santana. Plaintiff’s remaining allegations related to his equal protection claim are

broad and fail to identify any specific similarly situated comparator.

To the extent Plaintiff attempts to allege disparate treatment, his allegations are

insufficient. Plaintiff compares himself to virtually every inmate in all DOCCS facilities. He

alleges that he is being treated differently than inmates who are being held in general population

or inmates subjected to disciplinary confinement because he is being unlawfully held in

disciplinary confinement. (Id. ¶ 98 – 99.) He also argues—again, without referring to any

similarly situated inmate—that Defendants Griffin and Chappius did not follow proper procedure

when they transferred Plaintiff to Elmira. (Id. ¶ 99.) Such broad allegations do nothing to

identify a similarly situated comparator.

V. State law claims

According to Defendants, Plaintiff’s state law claims should be dismissed under New

York Correction Law § 24. Under New York Corrections Law § 24, a plaintiff cannot assert a

civil action against correctional officers and employees of DOCCS in their individual capacities

“for damages arising out of any act done or the failure to perform any act within the scope of the

employment and in the discharge of the duties by such officer or employee.” N.Y. Correct. L.

§ 24. New York Corrections Law § 24 precludes “ ‘the assertion of claims against corrections

officers [in their personal capacities] in any court, including the federal courts,’ by designating

the New York State Court of Claims as the only available venue to bring a claim for damages

arising out the acts committed by corrections officers within the scope of their employment.”

Rucano v. Koenigsmann, No. 12-CV-00035(MAD), 2014 WL 1292281, at *15 (N.D.N.Y. Mar.

31, 2014) (citing Baker v. Coughlin, 77 F.3d 12, 15 (2d Cir. 1996) ); Ramos v. Artuz, No. 00-CV-

0149, 2001 WL 840131, at *6 (S.D.N.Y. July 25, 2001) (concluding that New York Corrections

Law § 24 barred inmate’s state law claims for negligence against DOCCS employees in their

individual capacities); Francis v. Fiacco, No. 15-CV-00901(MAD)(ATB), 2016 WL 3448617, at

*4 (N.D.N.Y. June 20, 2016) (barring pendent state claims, including state law false

imprisonment claim, as precluded by New York Correction Law § 24).

If a court determines that the DOCCS employees acted within the scope of their

employment, it must dismiss state law claims asserted against them in their individual capacities

for lack of subject matter jurisdiction. Colón v. N.Y. State Dep’t of Corr. & Cmty. Supervision,

No. 15-CV-7432(NSR), 2017 WL 4157372, at *8 (S.D.N.Y. Sept. 15, 2017). A plaintiff cannot

use supplemental jurisdiction to circumvent § 24 because even when a court exercises

supplemental jurisdiction over state claims, the court must apply substantive state law to those

claims. Id. (rejecting the plaintiff’s argument that the court could assert supplemental

jurisdiction over his state law claims against individual DOCCS defendants); Francis, 2016 WL

3448617, at *4 (“Section 24 of New York Correction Law governs substantive rights; it is

not procedural.”).

Here, the facts in the SAC do not indicate that Defendants, all DOCCS employees, acted

outside of the scope of their employment.14 Therefore, Plaintiff’s state law claims against

Defendants in their individual capacities are dismissed.

14 An employee acts within the scope of her employment when she performs an act for her employer,

regardless of any irregularity or whether she disregarded instructions. Ierardi v. Sisco, 119 F.3d 183, 187 (2d Cir.

1997).

CONCLUSION

For the foregoing reasons, Defendants’ partial motion to dismiss is GRANTED. Plaintiff

will not be permitted to amend his SAC because he has already twice amended his Complaint

and was informed by the Court on September 17, 2018 and November 2, 2018 that no other

amendments would be permitted. (ECF Nos. 103 & 111.) As there are no remaining claims

against Defendants Doe, Kirkpatrick, Venettozzi, and Bellamy, they are dismissed from this case

and the Clerk of the Court is respectfully directed to remove those Defendants from the caption.

The Clerk of the Court is further respectfully directed to terminate the motion at ECF No.

119. Defendants are directed to file an answer to the SAC on or before July 9, 2019. Parties are

directed to confer and complete the attached case management plan and Defendant is directed to

submit it to the Court on or before July 26, 2019. The Clerk of the Court is directed to mail a

copy of this Opinion to pro se Plaintiff and file proof of service on the docket.

Dated: June 7, 2019 SO ORDERED: __—.,

White Plains, New York □

_

ki S. ROMAN

United States District Judge

28

UNITED STATES DISTRICT COURT Rev. Jan. 2012

SOUTHERN DISTRICT OF NEW YORK

nee me een aX

CIVIL CASE DISCOVERY PLAN

Plaintiff(s), AND SCHEDULING ORDER

- against -

Defendant(s). CV (NSR)

ee ak ym tt a SK

This Civil Case Discovery Plan and Scheduling Order is adopted, after consultation with

counsel, pursuant to Fed. R. Civ. P. 16 and 26(f):

1, All parties [consent] [do not consent] to conducting all further proceedings before a

Magistrate Judge, including motions and trial, pursuant to 28 U.S.C. § 636(c). The

parties are free to withhold consent without adverse substantive consequences. (If

all parties consent, the remaining paragraphs of this form need not be completed.)

2. This case [is] [is not] to be tried to a jury.

3, Joinder of additional parties must be accomplished by .

4, Amended pleadings may be filed until .

5. Interrogatories shall be served no later than , and responses

thereto shall be served within thirty (30) days thereafter. The provisions of Local

Civil Rule 33.3 [shall] [shall not] apply to this case.

6. First request for production of documents, if any, shall be served no later than

7, Non-expert depositions shall be completed by .

a. Unless counsel agree otherwise or the Court so orders, depositions shall not

be held until all parties have responded to any first requests for production

of documents.

b. Depositions shall proceed concurrently.

C. Whenever possible, unless counsel agree otherwise or the Court so orders,

non-party depositions shall follow party depositions.

8. Any further interrogatories, including expert interrogatories, shall be served no later

than

9. Requests to Admit, if any, shall be served no later than .

10. Expert reports shall be served no later than

11. Rebuttal expert reports shall be served no later than .

12. Expert depositions shall be completed by .

13. Additional provisions agreed upon by counsel are attached hereto and made a part

hereof.

14. ALL DISCOVERY SHALL BE COMPLETED BY

15. Any motions shall be filed in accordance with the Court’s Individual Practices.

16. This Civil Case Discovery Plan and Scheduling Order may not be changed without

leave of Court (or the assigned Magistrate Judge acting under a specific order of

reference),

17. The Magistrate Judge assigned to this case is the Hon. .

18. If, after entry of this Order, the parties consent to trial before a Magistrate Judge,

the Magistrate Judge will schedule a date certain for trial and will, if necessary,

amend this Order consistent therewith.

19, The next case management conference is scheduled for ,

at . (The Court will set this date at the initial conference.)

SO ORDERED.

Dated: White Plains, New York

Nelson S. Roman, U.S. District Judge