Stapleton v. Pagano

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

THEIL THAMAR STAPLETON,

Plaintiff,

No. 19-CV-952 (KMK)

v.

OPINION & ORDER

J. PAGANO, et al.,

Defendants.

APPEARANCES:

Theil T. Stapleton

Ossining, NY

Pro se Plaintiff

Jennifer R. Gashi, Esq.

State of New York Office of the Attorney General

White Plains, NY

Counsel for Defendants

KENNETH M. KARAS, United States District Judge:

Pro se Plaintiff Theil Thamar Stapleton (“Plaintiff”) brings this Action, pursuant to 42

U.S.C. § 1983, against Deputy Superintendent of Administration J. Pagano (“Pagano”), Deputy

Superintendent of Health S. Henton (“Henton”), Nurse Administrator K. Ferdous (“Ferdous”),

Dr. T. Alam (“Alam”), Sergeant Ortega (“Ortega”), and Correction Officers (“C.O.”) F. Bailey

(“Bailey”) and R. Carrington (“Carrington”) (collectively, “Defendants”), alleging that

Defendants violated Plaintiff’s constitutional rights by subjecting him to improper conditions of

confinement and denial of medical care. (See generally Compl. (Dkt. No. 2).) Before the Court

is Defendants’ Motion To Dismiss (the “Motion”). (See Not. of Mot. (Dkt. No. 35).) For the

reasons discussed below, the Motion is granted.

I. Background

A. Factual Background

The following facts are taken from the Complaint and assumed true for the purposes of

resolving the instant Motion.

Plaintiff, an inmate at Sing Sing Correctional Facility (“Sing Sing”), suffers from a skin

condition that causes “burning sensations on certain areas of his skin.” (Compl. 3.)1 When

Plaintiff scratches his skin, the skin “breaks and bleeds.” (Id.) Until recently, Plaintiff’s primary

medical provider, Alam, and a dermatologist provided Plaintiff with “necessary treatment” for

his condition. (Id.)2 However, sometime before March 29, 2018, Alam informed Plaintiff that

he could not continue to provide Plaintiff with his previous treatment because Ferdous, Henton,

and Pagano had ordered him “to end (suspend) all specialized ca[]ses of treatment.” (Id. at 2–3)

This directive, which suspended “[a]ll specialized medical treatment . . . without conducting any

follow-up examinations,” was issued after Bailey and Carrington complained to Ortega “about

prisoners with medical showers,” and after Ortega told Pagano that “medical showers only make

more work for his officers.” (Id. at 3–4.) In response, Pagano “escorted all primary health care

providers . . . to the bathhouse area and told them ‘there is no reason why an inmate should be

issued a[] medical shower pass.’” (Id. at 3.)

Plaintiff currently lacks the ability to properly clean the infected area on his skin,

particularly his testicles. (Id. at 4.) As a result, Plaintiff suffers from “increased burning

sensations,” increased skin irritation, and increased bleeding when he scratches himself. (Id.)

1 Citations to Plaintiff’s Complaint and Opposition reflect the page numbers contained in

the ECF stamp.

2 Although Plaintiff does not specify what this “treatment” consists of, it seems (based on

his related allegations) that he may be referring to authorization to take additional showers.

Plaintiff is also experiencing “[u]nnecessary pressure placed on [his] knees.” (Id.) Plaintiff

further alleges that Henton and Ferdous have “posed threats to prisoners who complain,”

specifically declaring that “whoever complains will have their medical needs met in another

facility.” (Id. at 3–4.) Additionally, Plaintiff alleges that his cell has water damage, peeling

paint, mold growth, and a leaky ceiling, and that his cell block has “no ventilation.” (Id. at 3.)

Plaintiff seeks hundreds of thousands of dollars in damages, the “exempt[ion]” of

Defendants “from indemnification and qualified immunity,”3 and an order enjoining “all-non-

medical staff from accessing[,] interfering[,] influencing[,] and compromising prisoner medical

records and treatment plan[s].” (Compl. 6.) Plaintiff also seeks “an expedited hearing” to

facilitate the swift reinstatement of his treatment. (Id.)

B. Procedural Background

On January 30, 2019, the Court docketed Plaintiff’s Complaint and request to proceed in

forma pauperis (“IFP”). (See Dkt. Nos. 1–2.) IFP status was granted on February 7, 2019. (See

Dkt. No. 4.) While Plaintiff initially encountered difficulties in identifying and serving

Carrington, (see Dkt. Nos. 15, 19, 23–25, 28), Carrington was eventually identified on July 8,

2019, and served on August 8, 2019, (see Dkt. Nos. 26, 33). On September 20, 2019,

Defendants filed this Motion and accompanying papers. (See Not. of Mot.; Defs.’ Mem.) On

October 10, 2019, the Court docketed Plaintiff’s Opposition. (See Pl.’s Mem. of Law in Opp’n

to Mot. (“Pl.’s Mem.”) (Dkt. No. 37).) On November 8, 2019, Defendants filed their Reply.

(Defs.’ Reply Mem. of Law in Further Supp. of Mot. (“Defs.’ Reply”) (Dkt. No. 38).)

3 Defendants do not invoke the doctrine of qualified immunity in their Motion. (See

generally Defs.’ Mem. in Supp. of Mot. (“Defs.’ Mem.”) (Dkt. No. 36).)

II. Discussion

A. Standard of Review

The Supreme Court has held that although a complaint “does not need detailed factual

allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure

“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). “Nor does a complaint suffice if it

tenders naked assertions devoid of further factual enhancement.” Id. (alteration and quotation

marks omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a right to

relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been

stated adequately, it may be supported by showing any set of facts consistent with the allegations

in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to

relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claims

across the line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also

Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief

will . . . be a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense. But where the well-pleaded facts do not permit the court to infer

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

‘show[n]’—’that the pleader is entitled to relief.’” (citation omitted) (second alteration in

original) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous

departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the

doors of discovery for a plaintiff armed with nothing more than conclusions.”).

In considering a motion to dismiss, the Court “must accept as true all of the factual

allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Further,

“[f]or the purpose of resolving [a] motion to dismiss, the Court . . . draw[s] all reasonable

inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d 302, 304

n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012)).

Where, as here, a plaintiff proceeds pro se, the “complaint[ ] must be construed liberally and

interpreted to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723 F.3d

399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted). However, “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.” Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013)

(quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir.

2008) (“[P]ro se litigants generally are required to inform themselves regarding procedural rules

and to comply with them.” (italics and quotation marks omitted)).

Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its

consideration to facts stated on the face of the complaint, in documents appended to the

complaint or incorporated in the complaint by reference, and to matters of which judicial notice

may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation

marks and citation omitted). When a plaintiff proceeds pro se, however, the Court may consider

“materials outside the complaint to the extent that they are consistent with the allegations in the

complaint.” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y.

Aug. 2, 2013) (quotation marks omitted).

B. Analysis

Liberally construed, the Complaint seeks to plead violations of the Eighth Amendment

based on deliberate indifference to Plaintiff’s medical needs and inadequate conditions of

confinement, and violations of the First Amendment based on threats of retaliation. (See

generally Compl.) Defendants argue that Plaintiff’s allegations regarding his medical situation

are insufficiently serious to give rise to an Eighth Amendment violation; that Plaintiff has failed

to adequately allege that Defendants possessed the requisite state of mind for Eighth Amendment

violations; that Plaintiff’s cell conditions are constitutionally adequate; and that Plaintiff has

failed to plead the personal involvement of most Defendants. (See generally Defs.’ Mem.) The

Court addresses these arguments only to the extent necessary to resolve the instant Motion.

1. Deliberate Indifference to Medical Needs

“The Eighth Amendment forbids ‘deliberate indifference to serious medical needs of

prisoners.’” Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)

(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). To successfully state a constitutional

violation based on such deliberate indifference, an inmate must plausibly allege (1) “that he

suffered a sufficiently serious constitutional deprivation,” and (2) that the defendants “acted with

deliberate indifference.” Feliciano v. Anderson, No. 15-CV-4106, 2017 WL 1189747, at *8

(S.D.N.Y. Mar. 30, 2017). The first element is “objective” and requires that a plaintiff show that

the “alleged deprivation of adequate medical care [is] sufficiently serious.” Spavone, 719 F.3d at

138 (citation and quotation marks omitted). In other words, a plaintiff “must show that the

conditions, either alone or in combination, pose an unreasonable risk of serious damage to his

health.” Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (citation omitted). Analyzing this

objective requirement involves two inquiries: “whether the prisoner was actually deprived of

adequate medical care,” and “whether the inadequacy in medical care is sufficiently serious,”

which in turn “requires the court to examine how the offending conduct is inadequate and what

harm, if any, the inadequacy has caused or will likely cause the prisoner.” Salahuddin v. Goord,

467 F.3d 263, 279–80 (2d Cir. 2006) (citations omitted). “There is no settled, precise metric to

guide a court in its estimation of the seriousness of a prisoner’s medical condition.” Brock v.

Wright, 315 F.3d 158, 162 (2d Cir. 2003). Nevertheless, the Second Circuit has offered the

following non-exhaustive list of factors to consider when evaluating an inmate’s medical

condition: “(1) whether a reasonable doctor or patient would perceive the medical need in

question as important and worthy of comment or treatment, (2) whether the medical condition

significantly affects daily activities, and (3) the existence of chronic and substantial pain.” Id.

(citation and quotation marks omitted).

The second element, which goes to mental state, requires a plaintiff to show that prison

officials were “subjectively reckless in their denial of medical care.” Spavone, 719 F.3d at 138

(citation omitted). This means that the official must have “appreciate[d] the risk to which a

prisoner was subjected,” and have had a “subjective awareness of the harmfulness associated

with those conditions.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017); see also Nielsen v.

Rabin, 746 F.3d 58, 63 (2d Cir. 2014) (“Deliberate indifference is a mental state equivalent to

subjective recklessness,” and “requires that the charged official act or fail to act while actually

aware of a substantial risk that serious inmate harm will result.” (citation, footnote, and quotation

marks omitted)). In other words, “[i]n medical-treatment cases not arising from emergency

situations, the official’s state of mind need not reach the level of knowing and purposeful

infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate

indifference to inmate health.” Salahuddin, 467 F.3d at 280 (citation omitted). An official’s

awareness of the risk of serious harm can be established through “inference from circumstantial

evidence,” including “from the very fact that the risk was obvious.” Farmer v. Brennan, 511

U.S. 825, 842 (1994). However, “mere negligence” is insufficient to state a claim for deliberate

indifference. Walker, 717 F.3d at 125 (quoting Farmer, 511 U.S. at 835). Neither does “mere

disagreement over the proper treatment . . . create a constitutional claim”; “[s]o long as the

treatment given is adequate, the fact that a prisoner might prefer a different treatment does not

give rise to an Eighth Amendment violation.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.

1998).

Here, Plaintiff’s allegations are insufficient to satisfy the first element of an Eighth

Amendment medical indifference claim because the medical condition he describes, and the

allegedly inadequate treatment he received, are insufficiently serious. Plaintiff alleges only the

denial of some unspecified “necessary treatment” (which, from context, may refer to a medical

shower) caused an increase in skin irritation, and left his skin increasingly vulnerable to

“breakage,” “bleeding,” and “peeling.” (Compl. 3–4.) However, “a skin rash or condition, even

one that involves bleeding and scarring, is not a medical condition that gives rise to an Eighth

Amendment deliberate indifference claim.” Thurmond v. Thomas-Walsh, No. 18-CV-409, 2019

WL 1429559, at *7 (S.D.N.Y. Mar. 29, 2019) (collecting cases); see also Cooper v. Orange

County, No. 15-CV-10075, 2017 WL 3309754, at *5 (S.D.N.Y. Aug. 2, 2017) (holding that the

plaintiff failed to allege an Eighth Amendment claim based on a skin rash because “the only

stated symptoms . . . were an undescribed level and duration of pain, and eventually scarring,”

and because the plaintiff did not allege that he suffered “chronic and substantial pain or that [his

skin condition] significantly affected his daily activities”), appeal dismissed sub nom. Cooper v.

Orange Cty. Jail, No. 17-2815, 2018 WL 1276746 (2d Cir. Jan. 24, 2018); Ahlers v. Kaskiw, No.

12-CV-501, 2014 WL 4184752, at *10 (N.D.N.Y. Aug. 21, 2014) (holding that the plaintiff’s

skin rash and eczema were not sufficiently serious medical conditions to provide the objective

element of an Eighth Amendment claim); Purdie v. City of New York, No. 10-CV-5802, 2011

WL 1044133, at *3–4 (S.D.N.Y. Mar. 15, 2011) (“A skin rash is generally insufficient to meet

the objective requirement of a sufficiently grave and serious condition giving rise to a deliberate

indifference claim.” (citing, inter alia, Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009) (per

curiam))); Swindell v. Supple, No. 02-CV-3182, 2005 WL 267725, at *7 (S.D.N.Y. Feb. 3, 2005)

(explaining that a plaintiff’s medical conditions, including occasional bleeding from cracked skin

and “thick” and “painful” calluses, were “not of such an urgent and substantially painful nature

as would satisfy the objective prong of the deliberate indifference standard” (citation and

quotation marks omitted)); Samuels v. Jackson, No. 97-CV-2420, 1999 WL 92617, at *1–3

(S.D.N.Y. Feb. 22, 1999) (dismissing an action because the inmate’s alleged skin conditions of

“papules, vesicles, pustules, burrows, and intense itching” causing “constant scratching of the

affected areas, causing open sores, and abrasions” and “permanent scars” did not constitute a

sufficiently serious medical condition to sustain an Eighth Amendment claim for deliberate

indifference (record citations, alteration, and quotation marks omitted)).

Moreover, Plaintiff “has not alleged that his condition has impacted his daily activities

and . . . has not alleged any facts that establish that his condition was any worse than the similar

types of skin conditions that courts in the Second Circuit have repeatedly found are not serious

medical conditions.” Thurmond, 2019 WL 1429559, at *7. Finally, Plaintiff does not specify

what treatment he seeks, or explain how or why he believes it would be helpful to him. His

claims thus also fail because they are “[v]ague and conclusory.” Jackson v. Westchester County,

No. 18-CV-7207, 2019 WL 3338020, at *6 (S.D.N.Y. July 25, 2019) (citation and quotation

marks omitted); see also Smalls v. Wright, No. 16-CV-2089, 2017 WL 3474070, at *3 (D. Conn.

Aug. 11, 2017) (explaining that a plaintiff’ s contention that a defendant doctor “knowingly

persisted in a course of treatment that was ineffective and left [the plaintiff] in extreme pain”

was “conclusory and devoid of factual support” (record citation, alteration, and quotation marks

omitted)); Henrius v. County of Nassau, No. 13-CV-1192, 2015 WL 5542464, at *1 (E.D.N.Y.

Sept. 16, 2015) (explaining that conclusory allegations of denial of medical care are “not entitled

to the assumption of truth” on a motion to dismiss (citations omitted)). Accordingly, Plaintiff’s

claim of inadequate medical care is dismissed.

2. Conditions of Confinement Claim

In addition to medical treatment, inmates have the right to physical conditions of

confinement that do not “involve the wanton and unnecessary infliction of pain.” Rhodes v.

Chapman, 452 U.S. 337, 347 (1981). However, inmates do not have a right to “comfortable”

prison conditions. Id. at 349. Thus,

[t]o state an Eighth Amendment claim based on conditions of confinement, an

inmate must allege that: (1) objectively, the deprivation the inmate suffered was

sufficiently serious that he was denied the minimal civilized measure of life’s

necessities, and (2) subjectively, the defendant official acted with a sufficiently

culpable state of mind, such as deliberate indifference to inmate health or safety.

Walker, 717 F.3d at 125 (citation, alteration, and quotation marks omitted). “To meet the

objective element, the inmate must show that the conditions, either alone or in combination, pose

an unreasonable risk of serious damage to his health.” Id. (citations omitted); see also Seymore

v. Dep’t of Corr. Servs., No. 11-CV-2254, 2014 WL 641428, at *3 (S.D.N.Y. Feb. 18, 2014)

(“[T]he Second Circuit . . . has explained that ‘[b]ecause society does not expect or intend prison

conditions to be comfortable, only extreme deprivations are sufficient to sustain a ‘conditions-of-

confinement claim.’” (alteration in original) (citation omitted)). To meet the subjective element,

a plaintiff must show that the defendant “acted with more than mere negligence,” and instead

knew of and disregarded an “excessive risk to inmate health or safety.” Walker, 717 F.3d at 125

(citations and quotation marks omitted). Under the Eighth Amendment, officials may not “create

inhumane prison conditions, deprive inmates of basic necessities, or fail to protect their health or

safety.” Overton v. Bazzetta, 539 U.S. 126, 137 (2003).

Here, Plaintiff alleges only that his cell had a leaky ceiling, peeling paint, mold, and

lacked ventilation. (Compl. 3.) The Court need not decide whether such allegations suggest a

sufficiently extreme deprivation to state a constitutional violation, because in any event,

Plaintiff’s claim fail for two other reasons. First, Plaintiff does not allege that Defendants knew

about the state of his cell’s paint, ceiling, mold, or ventilation problems. (See generally Compl.)

Thus, Plaintiff has failed “to allege any facts to support the subjective element of the claim, i.e.,

that Defendants knew of and disregard[ed] an excessive risk to inmate safety.” Bryant v. Capra,

No. 18-CV-10198, 2020 WL 508843, at *11 (S.D.N.Y. Jan. 31, 2020) (citation and quotation

marks omitted). This failure alone warrants dismissal. See id. (dismissing Eighth Amendment

conditions of confinement claim for failure to allege facts suggesting that the defendants

possessed the requisite state of mind); Clay v. Lee, No. 13-CV-7662, 2019 WL 1284290, at *7

(S.D.N.Y. Mar. 20, 2019) (dismissing conditions of confinement claim where the plaintiff failed

to “show that any particular [d]efendant acted with any mental state, let alone the ‘subjective

recklessness’ required to state deliberate indifference” (citing Salahuddin, 467 F.3d at 280);

Thomas v. DeCastro, No. 14-CV-6409, 2018 WL 1322207, at *14 (S.D.N.Y. Mar. 13, 2018)

(dismissing Eighth Amendment conditions of confinement claim where the complaint “fail[ed]

to allege that any [d]efendant was aware of facts from which the inference could be drawn that

the conditions . . . specifically posed a substantial risk of serious harm to [the p]laintiff, or that

[the d]efendants in fact drew such an inference” (citation, footnote, and quotation marks

omitted)).

Second, Plaintiff does not connect the physical conditions of his cell to any act by any

Defendant. Indeed, Plaintiff has not alleged that any Defendant created, sustained, or exercised

any authority in failing to rectify any condition that he describes. (See generally Compl.) This

too is fatal to Plaintiff’s claim. “Proof of an individual defendant’s personal involvement in the

alleged wrong is, of course, a prerequisite to his liability on a claim for damages under § 1983.”

Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001). Because “a plaintiff must plead that each

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

Constitution,” Iqbal, 556 U.S. at 676, the failure to allege any connection between the

Defendants and Plaintiff’s cell conditions fatally undermines Plaintiff’s claims, see Collins v.

Fischer, No. 15-CV-103, 2018 WL 1626528, at *8 (S.D.N.Y. Mar. 30, 2018) (dismissing

conditions of confinement claim where the plaintiff “fail[ed] to identify an individual who is

responsible for the conditions of which he complains”).

3. Retaliation Claim

To state a First Amendment retaliation claim, Plaintiff must allege “(1) that the speech or

conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff,

and (3) that there was a causal connection between the protected conduct and the adverse

action.” Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (citation, alteration, and quotation

marks omitted); see also Washington v. Chaboty, No. 09-CV-9199, 2015 WL 1439348, at *9

(S.D.N.Y. Mar. 30, 2015) (same). An adverse action is any “retaliatory conduct that would deter

a similarly situated individual of ordinary firmness from exercising his or her constitutional

rights.” Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (citation omitted). In determining

whether a prison official’s conduct constitutes adverse action, “the court’s inquiry must be

tailored to the different circumstances in which retaliation claims arise, bearing in mind that

prisoners may be required to tolerate more than average citizens.” Id. (citation, alterations, and

quotation marks). “[B]ecause virtually any adverse action taken against a prisoner by a prison

official—even those otherwise not rising to the level of a constitutional violation—can be

characterized as a constitutionally proscribed retaliatory act,” the Second Circuit has instructed

district courts to “approach prisoner retaliation claims with skepticism and particular care.”

Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (citation and quotation marks omitted); see

also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (“Retaliation claims by prisoners are

prone to abuse since prisoners can claim retaliation for every decision they dislike.” (citation and

quotation marks omitted)). Accordingly, First Amendment retaliation claims brought by

prisoners must “be supported by specific and detailed factual allegations, not stated in wholly

conclusory terms.” Dolan, 794 F.3d at 295 (citation and quotation marks omitted).

Here, in support of his retaliation claim, Plaintiff alleges only that Ferdous and Henton

“posed threats to prisoners who complain,” warning inmates that “whoever complains will have

their medical needs met in another facility.” (Compl. 3–4.) These allegations are insufficient to

state a retaliation claim for several reasons. First, “verbal threats may qualify as adverse actions”

in the prison retaliation context only where they are “sufficiently specific and direct.” White v.

Westchester County, No. 18-CV-730, 2018 WL 6726555, at *17 (S.D.N.Y. Dec. 21, 2018)

(collecting cases); see also Terry v. Hulse, No. 16-CV-252, 2018 WL 4682784, at *11 (S.D.N.Y.

Sept. 28, 2018) (same); Mateo v. Fischer, 682 F. Supp. 2d 423, 434 (S.D.N.Y. 2010) (explaining

that “[t]he less direct and specific a threat, the less likely it will deter an inmate from exercising

his First Amendment rights”); Hofelich v. Ercole, No. 06-CV-13697, 2010 WL 1459740, at *2

(S.D.N.Y. Apr. 8, 2010) (concluding that “whether [verbal threats] constitute adverse action

seems to depend on their specificity and the context in which they are uttered” (citation and

quotation marks omitted)). Here, however, Defendants’ alleged statement that “whoever

complains will have their medical needs met in another facility” was stated generally, not

directed at Plaintiff. (Compl. 3–4.) Additionally, Defendants’ alleged statement—suggesting

only a prison transfer to receive alternative medical care—is not, at least on its face, a “threat” at

all. Moreover, insofar as the statement could be interpreted as a threat, it is far more benign than

many threats courts in the Second Circuit have considered insufficient to constitute an adverse

action. See Terry, 2018 WL 4682784, at *11 (dismissing a First Amendment retaliation claim

because the alleged threat was insufficiently specific and direct even where corrections officers

stated “they were gonna kill” the plaintiff (record citation, alterations, and quotation marks

omitted)); see also Albritton v. Morris, No. 13-CV-3708, 2016 WL 1267799, at *18 (S.D.N.Y.

Mar. 30, 2016) (dismissing First Amendment retaliation claims because an officer’s statements

to a plaintiff that his “grievances were unlikely to succeed” and that he “would handle things ‘his

way’” were insufficiently specific or direct (record citation and quotation marks omitted));

Barrington v. New York, 806 F. Supp. 2d 730, 746 (S.D.N.Y. 2011) (granting summary judgment

in favor of a defendant who told an inmate that “‘me and my boys . . . going to get you’ while

brandishing a copy of a grievance”); Bilal v. N.Y. State Dep’t of Corr., No. 09-CV-8433, 2010

WL 2506988, at *16 (S.D.N.Y. June 21, 2010) (“Neither [the defendant’s] comment . . . that [the

plaintiff] was ‘lucky’ because correction officers ‘usually fuck people up for writing a bunch of

bullshit grievances’ nor his . . . comment that '‘[y]ou’re not the only one who can write. I’m

willing to bet you’ll break or get broke up,’ was a ‘direct’ nor ‘specific’ threat.” (alterations and

record citations omitted)), aff’d sub nom. Bilal v. White, 494 F. App’x 143 (2d Cir. 2012); Mateo

v. Fischer, 682 F. Supp. 2d 423, 434 (S.D.N.Y. 2010) (“The opacity of [the defendant’s] threats

to [the plaintiff]—that [the plaintiff] should ‘wait till he put his hands on me,’ and that ‘one day

he and I will party,’—softens the deterrent effect considerably.” (record citations omitted)); cf.

Perkins v. Perez, No. 17-CV-1341, 2019 WL 1244495, at *14 (S.D.N.Y. Mar. 18, 2019)

(holding that a threat was sufficient to constitute an adverse action where “[the p]laintiff

explain[ed] when and where the threat took place”); White, 2018 WL 6726555, at *14 (“This

allegation constitutes a specific, clear threat made in response to [the p]laintiff’s prospective

grievance against [the d]efendant . . . . [The defendant] threatened physical harm to [the

p]laintiff, and did so with particularity, by pointing to the inmates who would harm [the p]laintiff

and explaining why they would harm him at her direction.”). In sum, Plaintiff has failed to

allege “facts plausibly suggesting that this conduct was substantial enough to deter an inmate of

ordinary firmness from filing grievances or otherwise engaging in protected conduct.” Tutora v.

Gessner, No. 17-CV-9517, 2019 WL 1382812, at *7 (S.D.N.Y. Mar. 27, 2019) (citation

omitted). Accordingly, Plaintiff’s retaliation claim is dismissed.

III. Conclusion

For the reasons stated above, the Motion is granted. Because this is the first adjudication

of Plaintiff’s claims, dismissal is without prejudice. Plaintiff may amend his complaint to

resolve the defects identified in this Opinion & Order. If Plaintiff wishes to file an amended

complaint, Plaintiff must do so in 30 days. Plaintiff is advised that the amended complaint will

replace, not supplement, the instant Complaint. The amended complaint must contain all of the

claims, defendants, factual allegations, and exhibits that Plaintiff wishes the Court to consider. If

Plaintiff fails to timely file an amended complaint, the Court may convert the current dismissal

without prejudice to dismissal with prejudice.

The Clerk of Court is respectfully requested to terminate the pending Motion, (Dkt. No.

35), and to mail a copy of this Opinion & Order to Plaintiff.

SO ORDERED.

Dated: August 11, 2020 iy. _. ugk Sy

White Plains, New York

KENNETHM.KARAS

UNITED STATES DISTRICT JUDGE

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