# Amaker v. Gerbing

> District Court, S.D. New York · October 17, 2019

URL: https://www.frixlaw.com/law-library/cases/10318293

## Case

- **Court:** District Court, S.D. New York
- **Decided:** October 17, 2019
- **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/10318293

## How later opinions describe it (automated extraction)

- discussing factors relevant to deciding if confinement in SHU constitutes an atypical hardship
- affirming dismissal of claim where the plaintiff asserted that the “depriv[ation] of exercise and access to communal religious services . . . caused him to suffer an ‘atypical and significant’ hardship”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANTHONY D. AMAKER,
Plaintiff,
-against-
17-CV-3520 (LLS)
K. GERBING; P. EARLY; S. ROBERTS; S.
ORDER TO AMEND
BENNETT; P. WOLFF; DR. GUSMAN; C.O.
J. RIO; C.O. BARBER; LT. JOHN DOE; D.
VENETOZZI,
Defendants.
LOUIS L. STANTON, United States District Judge:
Plaintiff filed this complaint while he was incarcerated at Bare Hill Correctional Facility
(“Bare Hill”), in the custody of the New York State Department of Corrections and Community
Supervision (DOCCS), asserting claims that arose at Bare Hill and at Otisville Correctional
Facility.1 By order dated October 2, 2019, the Court severed the claims in Plaintiff’s complaint
arising at Bare Hill and transferred those claims to the United States District Court for the
Northern District of New York.
For the reasons set forth below, the Court grants Plaintiff leave to amend his complaint.
STANDARD OF REVIEW
The Prison Litigation Reform Act (PLRA) requires federal courts to screen complaints
brought by prisoners who seek relief against a governmental entity or an officer or employee of a

1 Because Plaintiff is barred from filing any new action in forma pauperis (IFP) while a
prisoner, Amaker v. Annucci, ECF 7:14-CV-9692, 48 (KMK) (S.D.N.Y. Sept. 30, 2016), the
Court denied Plaintiff’s IFP application and dismissed the complaint without prejudice to
Plaintiff’s refiling it. Plaintiff thereafter paid the $400.00 in filing fees, and he has been released
from DOCCS custody. On August 26, 2019, the Court reopened this action.
governmental entity.2 See 28 U.S.C. § 1915A(a). The court must dismiss a prisoner’s in forma
pauperis complaint, or any portion of the complaint, that is frivolous or malicious, 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. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d

636, 639 (2d Cir. 2007). The court must also dismiss a complaint if the court lacks subject matter
jurisdiction. See Fed. R. Civ. P. 12(h)(3).
BACKGROUND
The following allegations are from Plaintiff Anthony Amaker’s complaint. When Plaintiff
was incarcerated at Green Haven Correctional Facility, Dr. Gordin provided medical care for
Plaintiff. Dr. Gordin “always renewed [Plaintiff’s] permits” for a bus pass and/or low bunk
permit for various medical conditions. (Compl. at 3.) However, Dr. Gordin apparently “passed
away of a heart attack” without having ordered knee braces for Plaintiff before his transfer to
Otisville Correctional Facility (“Otisville”). (Id.)
On March 5, 2015, Plaintiff arrived at Otisville, and had a medical visit with Dr. Ferdous.
Plaintiff eventually was issued a bus pass and low bunk permit at Otisville because of a

“condition in [his] right and left knees, lower back, herniated discs, and sciatica.” (Id.) A few
months after Plaintiff’s arrival, he was moved to the north side of Otisville, to dorm 112; in that
location, Plaintiff had a “mile long walk to the mess hall” with many hills. On January 20, 2016,
Plaintiff saw Dr. Gusman at Otisville, and Dr. Gusman directed the nurse to issue Plaintiff a six-
month bus pass.

2 Because Plaintiff filed this complaint while a prisoner, the provisions of the PLRA
apply to this action. See Gibson v. City Municipality of N.Y., 692 F.3d 198, 201 (2d Cir. 2012)
(“[T]he relevant time at which a person must be ‘a prisoner’ within the meaning of the PLRA in
order for the Act’s restrictions to apply is ‘the moment the plaintiff files his complaint.’”).
The “Executive Team” at Otisville, including Superintendent K. Gerbing, Deputy
Superintendents P. Early, S. Roberts, and S. Bennett, “were thinking of several plans to reduce
the [number] of bus passes giv[en] out by the doctors” and “started telling [Doctor] Gusman to
limit the areas which the bus could take those in need of the bus.” (Id. at 4.) As a result, on

March 11, 2016, Dr. Gusman began limiting locations to which prisoners could get a bus pass.
This “allowed Dr. Gusman to discriminate against mainly black and hispanic prisoners in
limiting the bus passes.” (Id.)
On March 11, 2016, Correction Officer K. Barber told Plaintiff that she had checked his
file and his bus pass was “no good.” (Id. at 7.) On March 16, 2016, Plaintiff filed a grievance and
submitted a form request for a “reasonable accommodation for inmates with disabilities, which
went directly to Ms. S. Bennett.” (Id.) At some point thereafter, Plaintiff was again “called to the
clinic and shown the application for reasonable accommodation, which was filled out by Ms.
Bennett.” (Id. at 5.)
Dr. Gusman called Plaintiff to the clinic and stated, “I am limit[ing] your bus pass [to]

mess hall and clinic only, and if you do not want this[,] then you will be moved to the South[,]
[where] you will only be given a bus pass for the visit[ing] room and commissary.” (Id.) On
March 25, 2016, Dr. Gusman “made a determination . . . to move [Plaintiff] to the South side of
the compound,” without doing “any further medical examination or evaluation.” (Id.)3 As a result

3 Plaintiff cites language that may be from the accommodation request application, which
states: “A medical examination may be necessary to verify the existence of a disability that is not
obvious, or to verify the severity of the limitations. If previous medical verification exists,
subsequent reexamination is not necessary with every new request for a reasonable
accommodation unless it appears the inmate’s condition has [changed] or a question exists
regarding the appropriateness of the accommodation. If further medical examination or
assessment is required, a decision regarding the accommodation will be made after medical
verification is obtained.” (Compl. at 5.)
of the housing change, Plaintiff lost the privilege of having a two-person cell, even though he
was not supposed to be “subjected to removal unless [he] violated a provision of the policy.” (Id.
at 9.)
The day that he was moved, Plaintiff had chest pain and was treated for high blood

pressure at the Orange County Regional Medical Center. (Id. at 6.) When Plaintiff returned to
Otisville on the evening of March 29, 2016, Correction Officer J. Rio “came to get [Plaintiff] in a
van. He immediately told [Plaintiff], ‘You have too much legal property.’” (Id.) Plaintiff
responded that he had a court order allowing him to have six “draft bags” of legal property.
Plaintiff eventually returned to the dorm without his property but several hours later was told to
pick up his property; Plaintiff took the bus back to retrieve his property.
The following day, Plaintiff “was called for a misbehavior report[,] where C.O. J. Rio set
[Plaintiff] up in retaliation for having legal property.” (Id. at 6.) Plaintiff was eventually able to
demonstrate that Rio did not inventory the property on March 25, 2016; instead, Rio inventoried
the property on March 29, 2016, which Plaintiff states (1) violates DOCCS policy on temporary

storage; and (2) “prove[s] a set up by C.O. Rio.” (Id. at 7.) Plaintiff filed a “claim against missing
property because the abuse of C.O. J. Rio retaliation against [Plaintiff] speaking out about
[Plaintiff’s legal property].” (Id.)
In April 2016, Plaintiff was elected to the inmate liaison committee for 123 Dorm. As of
April 27, 2016, Plaintiff was still unable to use the bus pass for “religious services, commissary,
visit room and package room.” (Id.) Correction Officer Barber told Plaintiff that she “checked
with a nurse and lieutenant and was told [that his] permit for six months was no good and not a
bus pass.” (Id.) Plaintiff states that before he was moved, Dr. Gusman had given him a bus pass
to travel to the mess hall and clinic but Plaintiff’s new housing at 123 dorm was “within a very
short distance” of those locations and he was “not taking the bus” there. (Id.)
On April 27, 2016, Dr. Gusman saw Plaintiff and issued him a limited bus pass, allowing
Plaintiff to use the bus to travel for religious services, and to the law library, visiting room, and

package room. Plaintiff did not receive a bus pass for “work program and commissary.” (Id. at
8.) Plaintiff alleges that “white hispanic and white prisoners . . . were allowed to continue on
unlimited bus passes, and they were not made to move from the North side to the South side
dormitories.” (Id.) That same afternoon, Correction Officer Watts asked Plaintiff for his old bus
pass. Plaintiff explained that he just received a new bus pass, which was in his locker. Plaintiff
later spoke to Watts again about his bus pass, and she told him that she had returned his pass to
the clinic because an unidentified person had called her and asked that Plaintiff’s old pass be
returned. (Id.)
Plaintiff then went to the medication window and spoke with Nurse Peter Wolff. Nurse
Wolff explained that Correction Officer Barber had indicated that Plaintiff was “trying to use an

old bus pass to get on the bus.” (Id.) Nurse Wolff “attempt[ed] to make [Plaintiff] wait and
started yelling [at Plaintiff] to sit down” in order to “intimidate [Plaintiff[ and stop [him from]
going to sick call to report him for taking the bus pass.” (Id.) Nurse Wolff told Plaintiff that he
was “giving [him] a direct order to sit down.” (Id.) Another inmate urged Plaintiff to sit down,
which he did. (Id. at 10.) But Plaintiff then “got up to speak to C.O. Figueroa[, who] told
[Plaintiff] to sit down and wait to speak to the sergeant.” (Id.) When Sergeant Mendez came out,
Plaintiff explained what had happened, and Mendez told Plaintiff to return to the dorm. After
Plaintiff was back in his dorm getting ready for class, he was notified that he “was placed on
cube confinement per Sgt. Mendez.” (Id.)
Deputy Superintendent P. Early came to Plaintiff’s dorm early the next morning, and
Plaintiff explained his story. Early told Plaintiff to inform Nurse Murray when Plaintiff returned
from his medical trip that Early had said to give Plaintiff a copy of his bus pass. Plaintiff
received notification the following day of the misbehavior report and the fact that Deputy

Superintendent Early had “taken [him] off cube confinement.” (Id.)
On May 12, 2016, Plaintiff had a Tier III disciplinary proceeding. Deputy Superintendent
Bennett, who acted as the hearing officer, knew that Plaintiff had filed a grievance about Nurse
Wolff and Correction Officer Barber’s actions and knew about his complaint that black prisoners
were being denied bus passes. Bennett “did not want to hear” Plaintiff’s retaliation defense and
“kept cutting off [his] defense.” (Id. at 11.) Even though Nurse Wolff indicated that Dr. Gusman
told him to retrieve Plaintiff’s “old” bus pass, Bennett would not allow Plaintiff to call Dr.
Gusman or Sergeant Mendez as witnesses. Bennett found Plaintiff guilty of an unspecified
charge (possibly of disobeying Nurse Wolff’s direct order to sit down, though this is unclear).
The penalty of 60 days in the Segregated Housing Unit (SHU) that Bennett imposed on Plaintiff

was reduced to 45 days. Plaintiff contends that Bennett was biased and found him guilty because
Plaintiff had grieved Bennett’s denial of his request for disability accommodations. Plaintiff also
argues that black prisoners were statistically more like to receive SHU disciplinary punishment
than other prisoners and that Bennett’s decision therefore violated the settlement in People v.
Annucci.4
Plaintiff appealed the disciplinary determination to D. Venetozzi, on the ground that he
was denied witnesses and documents, but the appeal was denied. Plaintiff then learned that

4 Plaintiff does not include any case citation. The Court assumes that the case Plaintiff
references is about racial disparities in SHU punishment.
Deputy Superintendent Bennett had been involved in Plaintiff’s bus pass investigation, and he
sought reconsideration of the denial of his appeal of the disciplinary determination, arguing that
Bennett was not an impartial hearing officer because of her involvement in that investigation.
(Id. at 12.) It appears that reconsideration of the denial of his appeal was denied.

Plaintiff was transferred to Ulster Correctional Facility, where he spent two weeks
“without his legal property.” (Id.) Plaintiff was next transferred to Fishkill Correctional Facility
in Sullivan County, where he had “limited access to the law library, writing supplies, hygiene
supplies, recreation, commissary phones. Limited library access, no program[s] [and] limited
medical treatment.” (Id. at 13.) Plaintiff was moved to different cells “at least five times,” despite
his “back, legs and heart problems.” (Id.) Plaintiff had been waiting for new contact lenses since
May 2016. When the eye doctor arrived at Fishkill Correctional Facility on an unspecified date,
the doctor was unaware of this “and therefore he did not bring the new prescription.” On June
30, 2016, Plaintiff was transferred from Fishkill to Bare Hill.5
DISCUSSION
A. Equal Protection

Plaintiff sues the “Executive Team,” including Defendants Gerbing, Early, Roberts, and
Bennett for “thinking of several plans to reduce the amount of bus passes give[n] out by the
doctors.” (Compl. at 4.) They allegedly told “Dr. Gusman to limit the bus passes” and the “areas
[to] which the bus could take those in need.” (Id.) Plaintiff further alleges that the directive to
limit bus passes “allowed Dr. Gusman to discriminate against mainly black and Hispanic
prisoners in limiting the bus passes.” (Id.) The Court construes these allegations as claims under

5 On October 2, 2019, the Court directed the Clerk of Court to transfer Plaintiff’s claims
arising at Bare Hill to the United States District Court for the Northern District of New York.
42 U.S.C. § 1983 that the “Executive Team” Defendants discriminated against Plaintiff because
of his disability and Dr. Gusman discriminated against Plaintiff because of his race.
The Equal Protection Clause of the Fourteenth Amendment commands that no State shall
‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a

direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne
Living Center, 473 U.S. 432, 439 (1985); Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005).
As a general rule, the equal protection guarantee of the Constitution is satisfied when the
government differentiates between persons for a reason that bears a rational relationship to an
appropriate governmental interest. See Heller v. Doe, 509 U.S. 312, 320 (1993).
Discrimination Based on Disability
Disability is not a protected class under the Equal Protection Clause and therefore
receives rational basis review. Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 366
(2001); Garcia v. State Univ. of N.Y. Health Scis. Ctr., 280 F.3d 98, 109 (2d Cir. 2001). Rational
basis review is highly deferential toward the government, whose actions are considered
presumptively rational and a classification must be upheld if “there is any reasonably

conceivable state of facts that could provide a rational basis for the classification.” Yuen Jin v.
Mukasey, 538 F.3d 143, 158 (2d Cir. 2008) (citation omitted). The rational basis need not be
articulated at the time the discriminatory classification or action occurs; the burden is ultimately
on the plaintiff to negate “every conceivable basis which might support” the state’s action. Price
v. New York State Bd. of Elections, 540 F.3d 101, 108 (2d Cir. 2008).
Plaintiff’s allegations that the Executive Team told “Dr. Gusman to limit the bus passes”
and the “areas [to] which the bus could take those in need” are insufficient to state a claim for
disability discrimination in violation of the Equal Protection Clause. On its face, a policy of
limiting bus passes to essential locations appears rationally related to the government’s legitimate
interests. Plaintiff alleges that the policy was applied to him to relocate him to a dorm near
essential daily services, including the mess hall, instead of being housed far from the mess hall
and provided with a bus pass to reach it. Plaintiff also alleges that he was given bus passes to
travel to all locations except the work program and commissary; Plaintiff does not indicate

whether he needed to travel to the work program for a prison job, how far the commissary was
for him, and whether his health prevented him from reaching the commissary without a bus pass.
Plaintiff’s allegations are insufficient to state a claim that the Executive Team’s policy of
limiting bus passes discriminated against disabled prisoners like him without a rational basis, in
violation of Plaintiff’s right to equal protection of the laws.
Discrimination Based on Race
“To state a race-based claim under the Equal Protection Clause, a plaintiff must allege
that a government actor intentionally discriminated against him on the basis of his race.” See
Brown v. City of Oneonta, New York, 221 F.3d 329, 337 (2d Cir. 2000). To do so, a plaintiff could
(1) point to a law or policy that “expressly classifies persons on the basis of race,” Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 213 (1995); (2) identify a facially neutral law or policy

that has been applied in an intentionally discriminatory manner, Yick Wo v. Hopkins, 118 U.S.
356, 373-74 (1886); or (3) allege that a facially neutral statute or policy has an adverse effect and
that it was motivated by discriminatory animus, Vill. of Arlington Heights v. Metropolitan Hous.
Dev. Corp., 429 U.S. 252, 264-65 (1977).
In some contexts, plaintiffs bringing equal protection claims are required “to plead the
existence of a similarly situated group that was treated differently.” Pyke v. Cuomo, 258 F3d 107,
109 (2d Cir. 2001) (citations and internal quotation marks omitted). However, a plaintiff who
“alleges that a facially neutral law or policy has been applied in an intentionally discriminatory
race-based manner . . . is not obligated to show a better treated, similarly situated group of
individuals of a different race in order to establish a claim of denial of equal protection.” Id. at
110. Instead, plaintiffs must “substantiate their claim that the [challenged action] was motivated
by racial discrimination.” Id.
Here, Plaintiff makes two statements that could be construed as seeking to assert a claim

that Dr. Gusman applied a facially neutral policy limiting bus passes in a manner that
discriminated based on race. First, Plaintiff alleges that “[t]he[y] stop[ped] issuing permit[s] and
told Dr. Fredous not to give out anymore bus passes and only allowed Dr. Gusman to
discriminate against mainly black and hispanic prisoners in limiting the bus passes.” (Id. at 4.)
Second, Plaintiff alleges that he saw Dr. Gusman on April 27, 2016, and “[o]n this very date, Dr.
Gusman gave [him] another limited buss pass for the use of religious service, law library, visit
room and packages. Consequently, I was denied to use the bus pass for work program and
commissary, but Dr. Gusman did not treat white hispanic and white prisoners in this same
manner. They were allowed to continue on unlimited bus passes, and they were not made to
move from the North side to the South side dormitories.” (Id. at 8.)

Plaintiff does not identify his own race, but the Court assumes for purposes of this order
that Plaintiff is black or hispanic. Plaintiff does argue that the new bus policy was applied in a
discriminatory manner. But Plaintiff fails to allege sufficient facts to state a plausible claim that
Dr. Gusman intentionally discriminated against him based on his race. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007) (a plaintiff must plead “enough facts to state a claim to relief
that is plausible on its face.”).
“[I]t is hornbook law that the mere fact that something bad happens to a member of a
particular racial group does not, without more, establish that it happened because the person is a
member of that racial group.” See Williams v. Calderoni, No. 11-CV-3020 (CM), 2012 WL
691832, at *7 (S.D.N.Y. Mar. 1, 2012), aff’d, 529 F. App’x 89 (2d Cir. 2013).6 Here, Plaintiff
does not include factual allegations that make it plausible that Dr. Gusman gave Plaintiff bus
passes to some locations (“religious service, law library, visit room and packages”) but not others
(“work program and commissary”) because of Plaintiff’s race.

Plaintiff’s allegation that he was moved to a different dormitory and “white hispanic and
white prisoners” were “not made to move from the North side to the South side dormitories” also
does not provide enough facts to state a claim that other individuals of different races were
similarly situated but treated differently because of race. Plaintiff thus fails to plead sufficient
facts to state a claim that Dr. Gusman applied the new bus pass policy to him in a racially
discriminatory manner.
B. Americans with Disabilities Act
Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132.7 Because Title II of the ADA applies to public entities, any ADA

claim against individual defendants in their individual capacities must be dismissed. See Green v.
City of N.Y., 465 F.3d 65, 76 (2d Cir. 2006); 42 U.S.C. § 12131(1).

6 Moreover, “[t]he naked assertion by plaintiff that ‘race was a motivating factor’ without
a fact-specific allegation of a causal link between defendant’s conduct and the plaintiff’s race is
too conclusory to survive a motion to dismiss.” Yusuf v. Vassar College, 827 F. Supp. 952, 955-
56 (S.D.N.Y. 1993), aff’d in part, rev’d in part on other grounds, 35 F.3d 709 (2d Cir. 1994).
7 Section 504 of the Rehabilitation Act similarly provides that “[n]o otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
Suits for prospective injunctive relief may, under the doctrine established by Ex parte
Young, 209 U.S. 123 (1908), proceed against state officers in their official capacities. See
Henrietta D. v. Bloomberg, 331 F.3d 261, 288 (2d Cir. 2003) (“We also cannot embrace the state
defendant’s statutory claim that an individual sued in his or her official capacity under the

doctrine of Ex parte Young is not a “public entity” subject to liability under the ADA.”). Here,
however, any claims for injunctive relief in connection with the bus passes at Otisville are moot
because Plaintiff already has been released from DOCCs custody.
Damages are available on an official-capacity claim only to the extent that damages
would be available against the State. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Congress
unambiguously expressed its intent to abrogate states’ immunity from claims for damages under
Title II. See 42 U.S.C. § 12202. But under section five of the Fourteenth Amendment, Congress
has authority to abrogate state immunity only for conduct that violates the Fourteenth
Amendment, as well as “a somewhat broader swath of conduct” that is constitutional but which
Congress may prohibit in order to remedy or deter actual violations. Garcia, 280 F.3d at 108.

Thus, claims for damages under Title II of the ADA can proceed only when a plaintiff states a
claim for a Fourteenth Amendment violation, Hilton v. Wright, 928 F. Supp. 2d 530, 556
(N.D.N.Y. 2013), such as where the plaintiff can establish that the Title II violation was
motivated by either discriminatory animus or ill will due to disability, Henrietta D. v. Bloomberg,
331 F.3d 261, 288 (2d Cir. 2003); see also Bolmer v. Oliveira, 594 F.3d 134, 148 (2d Cir. 2010)
(“Congress’s abrogation of [state agency’s] Eleventh Amendment immunity to [plaintiff’s] Title
II claim is valid if [the agency] violated (1) Title II and (2) [the plaintiff’s] right to substantive
due process.”).
Plaintiff’s allegations that Defendants Gerbing, Early, Roberts, and Bennett adopted a
new policy to limit bus passes do not suggest that these defendants were motivated by
“discriminatory animus or ill will due to disability.” Henrietta D., 331 F.3d at 288. Because
Plaintiff does not allege conduct that violates the Fourteenth Amendment, Plaintiff cannot pursue

a claim under Title II of the ADA for damages. Plaintiff’s allegations therefore fail to state a
claim under Title II of the ADA.
C. Due Process in Disciplinary Proceedings
“In a § 1983 suit brought to enforce procedural due process rights, a court must determine
(1) whether a [liberty or] property interest is implicated, and if it is, (2) what process is due
before the plaintiff may be deprived of that interest.” Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir.
2011) (citation omitted).
“A prisoner’s liberty interest is implicated by prison discipline, such as SHU [segregated
housing unit] confinement, only if the discipline ‘imposes [an] atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.’” Palmer v. Richards, 364 F.3d
60, 64 (2d Cir. 2004) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995). “[R]estrictive

confinements of less than 101 days do not generally raise a liberty interest warranting due
process protection, and thus require proof of conditions more onerous than usual.” Davis v.
Barrett, 576 F.3d 129, 133 (2d Cir. 2009); Kalwasinski v. Morse, 201 F.3d 103,107-08 (2d Cir.
1999) (discussing factors relevant to deciding if confinement in SHU constitutes an atypical
hardship).
Where a liberty interest is implicated, a prisoner is not entitled to “the full panoply of
rights” due in a criminal prosecution but is generally entitled to “advance written notice of the
charges against him; a hearing affording him a reasonable opportunity to call witnesses and
present documentary evidence; a fair and impartial hearing officer; and a written statement of the
disposition, including the evidence relied upon and the reasons for the disciplinary actions
taken.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citing Wolff v. McDonnell, 418 U.S. 539,
563-67 (1974)).
Conflict with Nurse Wolff
Here, Plaintiff alleges that as a result of the disciplinary charges against him at Otisville,

he was penalized with 45 days of SHU confinement. (Compl. at 11.) Plaintiff pleads few facts
about the conditions of his SHU confinement, which took place in Ulster Correctional Facility:
He alleges that he “spen[t] two weeks without any legal property,” that he had “limited writing
supplies,” and that the facility “wanted to take the plaintiff[’s] contact lens[es],” though he does
not state that they actually took his contact lenses. (Id. at 2.) These allegations are insufficient to
allege that Plaintiff “endured unusual SHU conditions.” Palmer, 364 F.3d at 65-66; see Arce v.
Walker, 139 F.3d 329, 337 (2d Cir. 1998) (affirming dismissal of claim where the plaintiff
asserted that the “depriv[ation] of exercise and access to communal religious services . . . caused
him to suffer an ‘atypical and significant’ hardship”). Plaintiff thus has not adequately alleged
that he had a liberty interest entitling him to procedural due process protection at his Otisville

disciplinary hearing.
Even if the Court assumes for purposes of this order that Plaintiff had a liberty interest,
he fails to plead facts that would demonstrate the process that he received was inadequate. As an
initial matter, Plaintiff does not plead facts about the violation with which he was charged.
Plaintiff alleges that the hearing officer denied him the opportunity to call Dr. Gusman and Dr.
Ferdous; these individuals were involved with Plaintiff’s bus pass, but it is not clear how they
were involved with the disciplinary charge against Plaintiff. Put another way, if Plaintiff was
charged, for example, with disobeying a direct order from Nurse Wolff to sit down (or remain
seated), then the merits of Plaintiff’s problems with his bus pass – and Dr. Gusman’s testimony –
are irrelevant to the disciplinary issue.
Plaintiff’s assertion that Deputy Superintendent Bennett could not be an impartial hearing
officer because she was involved with Plaintiff’s bus pass investigation also fails to state a claim.

It is not at all clear from the allegations of the complaint that Plaintiff’s disciplinary charge turns
on his entitlement to a bus pass and thus involves the same issues as the investigation into his bus
pass.
In sum, Plaintiff has not adequately alleged that he had a protected liberty interest or that
he was denied a “reasonable opportunity” to call witnesses, denied an impartial hearing officer,
or was denied any other process to which he was entitled. For all of these reasons, Plaintiff fails
to state a claim under § 1983 for the denial of procedural due process.
Conflict with J. Rios
A prisoner “has no constitutional right to be free from being falsely accused in a
misbehavior report,” Thomas v. Calero, 824 F. Supp. 2d 488, 499 (S.D.N.Y. 2011), and therefore
a prisoner’s claim that a correction officer filed a false report, without more, is generally not

actionable under § 1983, Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986). “[F]alse
accusations contained in a misbehavior report can rise to the level of a constitutional violation
. . . where the false accusation is based on something more, such as retaliation against the
prisoner for exercising a constitutional right.” Tafari v. McCarthy, 714 F. Supp. 2d 317, 372
(N.D.N.Y. 2010).
Plaintiff alleges that when he was moved on March 29, 2016, Correction Officer J. Rio
“came to get [Plaintiff] in a van. He immediately told [Plaintiff], ‘You have too much legal
property.’” (Id. at 6.) Plaintiff responded that he had a court order allowing him to have six “draft
bags” of legal property. Plaintiff returned to the dorm without his property but several hours later
was told to pick up his property; Plaintiff took the bus back to retrieve his property.
The following day, Plaintiff “was called for a misbehavior report[,] where C.O. J. Rio set
[Plaintiff] up in retaliation for having legal property.” (Id. at 6.) Plaintiff was eventually able to

demonstrate that Rio did not inventory the property on March 25, 2016; instead, Rio inventoried
the property on March 29, 2016, which Plaintiff states (1) violates DOCCS policy on temporary
storage; and (2) “prove[s] a set up by C.O. Rio.” (Id. at 7.) Plaintiff filed a “claim against missing
property because the abuse of C.O. J. Rio retaliation against [Plaintiff] speaking out about
[Plaintiff’s legal property].” (Id.)
Plaintiff’s allegations do not state a claim that Defendant Rios filed a false misbehavior
report in retaliation for Plaintiff’s exercise of his constitutional rights. First, Plaintiff has not
pleaded any facts about the nature of the disciplinary charge against him.8 Plaintiff alleges that
after Rio investigated Plaintiff’s statement that he had a court order for his six bags of legal
property, Rio allowed Plaintiff to keep the property. Plaintiff’s assertion that Rio retaliated

against him for “for having legal property” appears implausible in light of Plaintiff’s allegation
that Rio called Plaintiff to direct him to retrieve his legal property. Without further allegations,
such as information about the disciplinary charges against Plaintiff, for example, Plaintiff does
not state a claim that he was retaliated against for “exercising a constitutional right.” Tafari, 714
F. Supp. 2d at 372.
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to
cure its defects unless it would be futile. See Hill v. Curcione, 657 F.3d 116, 123–24 (2d Cir.

8 If the disciplinary charge against Plaintiff was for his allegedly inappropriate behavior,
for example, the fact that Plaintiff was entitled to the legal property, or that his property should
have been inventoried more promptly, is irrelevant to the disciplinary charge.
2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because it is unclear if the defects
in Plaintiff’s complaint can be cured with an amendment, the Court grants Plaintiff leave to
amend his complaint.
LEAVE TO AMEND
Plaintiff is granted leave to amend his complaint to detail his claims. In the statement of

claim, Plaintiff must provide a short and plain statement of the relevant facts supporting each
claim against each defendant named in the amended complaint. Plaintiff is also directed to
provide the addresses for any named defendants. To the greatest extent possible, Plaintiff’s
amended complaint must:
a) give the names and titles of all relevant persons;
b) describe all relevant events, stating the facts that support Plaintiff’s case including
what each defendant did or failed to do;
c) give the dates and times of each relevant event or, if not known, the approximate date
and time of each relevant event;
d) give the location where each relevant event occurred;
e) describe how each defendant’s acts or omissions violated Plaintiff’s rights and
describe the injuries Plaintiff suffered; and
f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive
relief, or declaratory relief.
Essentially, the body of Plaintiff’s amended complaint must tell the Court: who violated
his federally protected rights; what facts show that his federally protected rights were violated;
when such violation occurred; where such violation occurred; and why Plaintiff is entitled to
relief. Because Plaintiff’s amended complaint will completely replace, not supplement, the
original complaint, any facts or claims that Plaintiff wishes to maintain must be included in the
amended complaint.
CONCLUSION
The Clerk of Court is directed to assign this matter to my docket, mail a copy of this
order to Plaintiff, and note service on the docket. Plaintiff is granted leave to file an amended
complaint that complies with the standards set forth above. Plaintiff must submit the amended
complaint to this Court’s Pro Se Intake Unit within sixty days of the date of this order, caption
the document as an “Amended Complaint,” and label the document with docket number 17-CV-
3520 (LLS). An Amended Civil Rights Complaint form is attached to this order. No summons
will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show
good cause to excuse such failure, the complaint will be dismissed for failure to state a claim
upon which relief may be granted.
The Clerk of Court is directed to docket this as a “written opinion” within the meaning of
Section 205(a)(5) of the E-Government Act of 2002.
SO ORDERED.
Dated: October 15, 2019
New York, New York
Louis L. Stanton
US.D.J.

18

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

CVE
Write the full name of each plaintiff. (Include case number if one has been
assigned)

“against- COMPLAINT
(Prisoner)
Do you want a jury trial?
ssssssss...0.0.0. L1Yes LINo

Write the full name of each defendant. If you cannot fit the
names of all of the defendants in the space provided, please
write “see attached” in the space above and attach an
additional sheet of paper with the full list of names. The
names listed above must be identical to those contained in
Section IV.

NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed
with the court should therefore not contain: an individual’s full social security number or full
birth date; the full name of a person known to be a minor; or a complete financial account
number. A filing may include only: the last four digits of a social security number; the year of
an individual’s birth; a minor’s initials; and the last four digits of a financial account number.
See Federal Rule of Civil Procedure 5.2.

Rev. 5/20/16

I. LEGAL BASIS FOR CLAIM
State below the federal legal basis for your claim, if known. This form is designed primarily for
prisoners challenging the constitutionality of their conditions of confinement; those claims are
often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or ina
“Bivens” action (against federal defendants).
L] Violation of my federal constitutional rights
L] Other:
II. PLAINTIFF INFORMATION
Each plaintiff must provide the following information. Attach additional pages if necessary.

First Name Middle Initial Last Name

State any other names (or different forms of your name) you have ever used, including any name
you have used in previously filing a lawsuit.

Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency
and the ID number (such as your DIN or NYSID) under which you were held)

Current Place of Detention

Institutional Address

County, City State Zip Code
II. PRISONER STATUS
Indicate below whether you are a prisoner or other confined person:
L] Pretrial detainee
L] Civilly committed detainee
Immigration detainee
L] Convicted and sentenced prisoner
L] Other:

IV. DEFENDANT INFORMATION
To the best of your ability, provide the following information for each defendant. If the correct
information is not provided, it could delay or prevent service of the complaint on the defendant.
Make sure that the defendants listed below are identical to those listed in the caption. Attach
additional pages as necessary.
Defendant 1:
First Name Last Name Shield #

Current Job Title (or other identifying information)
Current Work Address

County, City State Zip Code
Defendant 2:
First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code
Defendant 3:
First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code
Defendant 4:
First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code

STATEMENT OF CLAIM
Place(s) of occurrence:

Date(s) of occurrence:
FACTS:
State here briefly the FACTS that support your case. Describe what happened, how you were
harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach
additional pages as necessary.

INJURIES:
If you were injured as a result of these actions, describe your injuries and what medical treatment,
if any, you required and received.

VI. RELIEF
State briefly what money damages or other relief you want the court to order.

VII. PLAINTIFF’S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the
complaint is not being presented for an improper purpose (such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law
or by anonfrivolous argument to change existing law; (3) the factual contentions have
evidentiary support or, if specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise
complies with the requirements of Federal Rule of Civil Procedure 11.
I understand that if I file three or more cases while I am a prisoner that are dismissed as
frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in
future cases.
I also understand that prisoners must exhaust administrative procedures before filing an action
in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be
dismissed if I have not exhausted administrative remedies as required.
I agree to provide the Clerk's Office with any changes to my address. I understand that my
failure to keep a current address on file with the Clerk's Office may result in the dismissal of my
case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff's Signature

First Name Middle Initial Last Name

Prison Address

Date on which | am delivering this complaint to prison authorities for mailing:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10318293. Public record. Not legal advice.