# Gunn v. Annucci

> District Court, S.D. New York · April 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10331768

## Case

- **Court:** District Court, S.D. New York
- **Decided:** April 29, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10331768

## How later opinions describe it (automated extraction)

- explaining that “a mere ‘linkage’ to the unlawful conduct through the ‘chain of command’ . . . is insufficient to show . . . personal involvement . . . .”
- explaining that “[t]he test to determine whether the defendants’ actions fall within the scope of their employment is whether the act was done while the servant was doing the master’s work no matter how irregularly, or with what disregard of instructions” (internal quotation m…

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DARRELL GUNN, 03-B-2443,
Plaintiff, MEMORANDUM OPINION
AND ORDER
-against-
20-CV-02004 (PMH)
ANTHONY J. ANNUCCI, Acting
Commissioner, et al.,

Defendants.
PHILIP M. HALPERN, United States District Judge:
Plaintiff Darrell Gunn (“Plaintiff”), proceeding pro se and in forma pauperis, brings this
action under 42 U.S.C. § 1983 against Anthony Annucci (“Annucci”), Acting Commissioner of
the New York State Department of Corrections and Community Supervision (“DOCCS”), and
Thomas R. Griffin (“Griffin”), Superintendent of Green Haven Correctional Facility (“Green
Haven”), for violating his rights under the Constitution. (Doc. 1, “Compl.”). Specifically, Plaintiff
claims that Annucci and Griffin (collectively, “Defendants”) violated his Eighth Amendment
rights when, from April 15, 2017 to May 15, 2017, the heat was turned off at Green Haven and he
was exposed to “unseasonably lower than average” temperatures. (Id. ¶¶ 11-12, 14).
Defendants filed a motion to dismiss the Complaint under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) on December 11, 2020. (Doc. 16; Doc. 19, “Def. Br.”). Plaintiff opposed the
motion on January 22, 2021 (Doc. 20, “Opp. Br.”), and the motion was briefed fully with the filing
of Defendants’ reply memorandum of law in further support of their motion to dismiss on February
5, 2021 (Doc. 23, “Reply Br.”).
For the reasons set forth below, Defendants’ motion to dismiss is GRANTED.
BACKGROUND
Plaintiff maintains that from April 15, 2017 to May 15, 2017, while incarcerated at Green
Haven, he was “expos[ed] . . . to bitter cold temperatures . . . .” (Compl. ¶ 11). During this month-
long period in the spring of 2017, Plaintiff claims that “temperatures during the day would reach
between 40˚ and 45˚ . . . and then even lower overnight—only low 30˚s.” (Id. ¶ 12). Plaintiff asserts

that he endured “incredible undue hardships, soft tissue problems, pain and stiffness, depression,
anxiety, loss of sleep, and mood swings” (id. ¶ 17), and undertook “futile and hopeless attempt[s]
to keep warm . . . [by] wear[ing] all his clothing . . . in his cell under the bedding . . . .” (id. ¶ 18).
As a result of being exposed to the elements, Plaintiff insists that he “cannot live a normal life” or
“perform typical daily life activities, i.e. reading, writing, meeting court deadlines, [and] sleeping.”
(Id. ¶ 16).
Plaintiff notes affirmatively that he “used the prisoner grievance procedure available at
Green Haven . . . to try and solve the problem.” (Id. ¶ 22). Plaintiff pled the following regarding
the grievance procedure he followed at Green Haven:
On May 25, 2017 plaintiff DARRELL GUNN, 03-B-2443 presented
the facts relating to this complaint. On July 3, 2017 plaintiff was
sent a response saying that the grievance had been denied. On
August 18, 2017 plaintiff appealed the denial of the grievance # GH-
86618-17.

(Id. ¶ 22).1 On these facts, Plaintiff proceeds against Defendants in both their official and
individual capacities seeking, inter alia, “[c]ompensatory damages in the amount of $250,000
against each defendant, jointly and severally” and “[p]unitive damages in the amount of $500,000
against each defendant.” (Id. ¶¶ 8, 28-29).

1 Plaintiff references also a grievance filed in May 2016. (Id. ¶ 21 (referencing “GH-82882-16”)). As that
grievance cannot complain about the conditions underlying this proceeding—which occurred a year later—
the Court need not and does not consider it.
STANDARD OF REVIEW
I. Federal Rule of Civil Procedure 12(b)(1)
“Federal courts are courts of limited jurisdiction, and Rule 12(b)(1) requires dismissal of
an action ‘when the district court lacks the statutory or constitutional power to adjudicate it.’”
Schwartz v. Hitrons Sols., Inc., 397 F. Supp. 3d 357, 364 (S.D.N.Y. 2019) (quoting Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000)). “The party invoking the Court’s jurisdiction
bears the burden of establishing jurisdiction exists.” Hettler v. Entergy Enters., Inc., 15 F. Supp.
3d 447, 450 (S.D.N.Y. 2014) (citing Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009)). When
deciding a motion to dismiss under Rule 12(b)(1) at the pleadings stage, “the Court ‘must accept
as true all material facts alleged in the complaint and draw all reasonable inferences in the
plaintiff’s favor.’” Id. (quoting Conyers, 558 F.3d at 143); see also Doe v. Trump Corp., 385 F.
Supp. 3d 265, 274 (S.D.N.Y. 2019).
When “the defendant moves for dismissal under Rule 12(b)(1) . . . as well as on other
grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the

complaint for lack of subject matter jurisdiction, the accompanying defenses and objections
become moot and do not need to be determined.” Saint-Amour v. Richmond Org., Inc., 388 F.
Supp. 3d 277, 286 (S.D.N.Y. 2019) (quoting United States v. New York City Dep’t of Hous., Pres.
& Dev., No. 09-CV-6547, 2012 WL 4017338, at *3 (S.D.N.Y. Sept. 10, 2012)).
II. Federal Rule of Civil Procedure 12(b)(6)
A Rule 12(b)(6) motion enables a court to dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). The factual allegations pled “must

be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555.
“When there are well-ple[d] factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
Thus, the Court must “take all well-ple[d] factual allegations as true, and all reasonable inferences
are drawn and viewed in a light most favorable to the plaintiff[].” Leeds v. Meltz, 85 F.3d 51, 53
(2d Cir. 1996). The presumption of truth, however, “‘is inapplicable to legal conclusions,’ and
‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556
U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than labels and

conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.
A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to
less stringent standards than formal pleadings drafted by lawyers . . . .” Estelle v. Gamble, 429
U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (internal quotation
marks omitted)). Because pro se plaintiffs “‘are often unfamiliar with the formalities of pleading
requirements,’ courts must ‘apply a more flexible standard in determining the sufficiency of a pro
se [complaint] than they would in reviewing a pleading submitted by counsel.’” Smith v. U.S. Dep’t
of Justice, 218 F. Supp. 2d 357, 361 (W.D.N.Y. 2002) (quoting Platsky v. Cent. Intelligence
Agency, 953 F.2d 26, 28 (2d Cir. 1991)). While “[p]ro se complaints are held to less stringent
standards than those drafted by lawyers, even following Twombly and Iqbal,” dismissal is proper
“where a plaintiff has clearly failed to meet minimum pleading requirements.” Thomas v.
Westchester Cty., No. 12-CV-6718, 2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013) (internal
citations omitted); see also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro
se case . . . although a court must accept as true all of the allegations . . . in a complaint, that tenet

is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” (internal quotation marks omitted)).
Therefore, while the Court must “draw the most favorable inferences that [a plaintiff’s]
complaint supports, [it] cannot invent factual allegations that [a plaintiff] has not pled.” Chappius,
618 F.3d at 170. The Court has also a duty to interpret “the pleadings of a pro se plaintiff liberally
and interpret them ‘to raise the strongest arguments that they suggest.’” McPherson v. Coombe,
174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
III. Documents Considered
On a motion under Rule 12(b)(1), “a district court . . . may refer to evidence outside the

pleadings.” Makarova, 201 F.3d at 113. Indeed, on such a motion, the Court “may consider
affidavits and other materials beyond the pleadings to resolve the jurisdictional issue,” along with
“matters of which judicial notice may be taken.” Malloy v. Pompeo, No. 18-CV-4756, 2020 WL
5603793, at *8 (S.D.N.Y. Sept. 18, 2020) (internal quotation marks omitted). Similarly, on a Rule
12(b)(6) motion, “the Court is entitled to consider facts alleged in the complaint and documents
attached to it or incorporated in it by reference, documents ‘integral’ to the complaint and relied
upon in it, and facts of which judicial notice may properly be taken under Rule 201 of the Federal
Rules of Evidence.” Heckman v. Town of Hempstead, 568 F. App’x 41, 43 (2d Cir. 2014); see also
Manley v. Utzinger, No. 10-CV-2210, 2011 WL 2947008, at *1 n.1 (S.D.N.Y. July 21, 2011) (“The
Court may consider . . . documents incorporated into the complaint by reference, and documents
possessed by or known to the plaintiff and upon which plaintiff relied in bringing the suit.”). Still,
“[w]here an extrinsic document is not incorporated by reference, the district court may
nevertheless consider it if the complaint relies heavily upon its terms and effect, which renders the
document integral to the complaint.” Schafer v. Direct Energy Servs., LLC, No. 20-3084-CV, 2021

WL 1621595, at *1 (2d Cir. Apr. 27, 2021) (internal quotation marks omitted).
Defendants’ motion is supported by a declaration, signed by counsel, submitting for the
Court’s consideration a one-page memorandum, dated September 12, 2017, denying Plaintiff’s
attempted appeal of his grievance to the Central Office Review Committee (“CORC”). (See Doc.
17, Declaration of Julinda Dawkins (“Dawkins Decl.”); Doc. 17-1, Dawkins Decl. Ex. A).
Plaintiff, in opposition to the motion, submitted papers documenting his compliance with Green
Haven’s grievance procedure (Opp. Br. at 6-26), along with a January 31, 2021 Decision and Order
issued by the New York State Court of Claims which, inter alia, denied his request to file a late
notice of claim concerning the conditions he experienced at Green Haven from April 2017 to May

2017 (id. at 27-35). First, neither Plaintiff nor Defendants have opposed the Court’s consideration
of any extraneous documents. Second, the Court may consider the documents concerning
Plaintiff’s exhaustion of administrative remedies because he pled affirmatively that he tried to
grieve his exposure to cold temperatures from April 15, 2017 to May 15, 2017 and that he appealed
the denial of the grievance—Grievance No. GH-86618-17—on August 18, 2017. (Compl. ¶ 22).
Documents associated with that grievance are, therefore, integral to and referenced in the
Complaint. See Thomas v. Goord, 215 F. App’x 51, 54 n.2 (2d Cir. 2007) (observing that because
the plaintiff “specifically references the . . . grievance . . . and indicates that she is making
allegations that are contained within that grievance,” the grievance could be considered on a
motion to dismiss because its contents were “incorporated by reference”); Sanchez v. Velez, No.
08-CV-1519, 2009 WL 2252319, at *1 n.1 (S.D.N.Y. July 24, 2009) (“Because plaintiff’s
grievances are referenced in the complaint, the grievance documents are incorporated by reference
and properly considered on a motion to dismiss.”). Likewise, the Court may consider the Court of
Claims’ Decision and Order because it may take judicial notice of state court decisions. See Tirse

v. Gilbo, No. 15-CV-987, 2016 WL 4046780, at *14 (N.D.N.Y. July 27, 2016) (explaining that
courts may take judicial notice of opinions issued by other courts “to establish the existence of the
opinion, not for the truth of the facts asserted” therein (internal quotation marks omitted)).
ANALYSIS
I. Lack of Subject-Matter Jurisdiction
The Court, as guided by precedent, turns first to Defendants’ arguments regarding the lack
of subject-matter jurisdiction and dismissal required under Rule 12(b)(1).
A. New York Correction Law § 24
Plaintiff does not identify specifically any state law claims for relief aside from referencing

generally the existence of such claims. (See Compl. ¶ 2 (claiming that the Court has “supplemental
jurisdiction over the plaintiff’s state law tort claims”)). Nevertheless, Defendants argue that to the
extent the Court construes the Complaint as seeking relief under New York State law, the Court
must dismiss those claims for want of subject-matter jurisdiction. (Def. Br. at 11-12).
New York Correction Law § 24 provides, in pertinent part:
1. No civil action shall be brought in any court of the state, except
by the attorney general on behalf of the state, against any officer
or employee of the department, which for purposes of this
section shall include members of the state board of parole, in his
or her personal capacity, 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.
2. Any claim 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 of any officer or employee of the
department shall be brought and maintained in the court of
claims as a claim against the state.

N.Y. Corr. Law §§ 24(1)-(2). “The Second Circuit has held that this provision prevents federal
courts from exercising pendent jurisdiction over state law claims appended to federal claims
brought pursuant to 42 U.S.C. § 1983.” Sughrim v. New York, No. 19-CV-7977, 2020 WL
7047697, at *21 (S.D.N.Y. Nov. 30, 2020) (quoting Hassell v. Fischer, 96 F. Supp. 3d 370, 385
(S.D.N.Y. 2015)); see also Davis v. McCready, 283 F. Supp. 3d 108, 124 (S.D.N.Y. 2017)
(“[U]nder Section 24, any tort claim arising under New York law . . . must be dismissed for lack
of subject matter jurisdiction.”); Cruz v. New York, 24 F. Supp. 3d 299, 309 (S.D.N.Y. 2014)
(“Plaintiff’s state law claims against Defendants . . . are barred because New York Correction Law
§ 24 shields them from liability for state law claims in both state and federal court.”).
Plaintiff does not suggest that Defendants acted outside the scope of their employment.
(See generally Compl.); see also Cruz, 24 F. Supp. 3d at 310 (explaining that “[t]he test to
determine whether the defendants’ actions fall within the scope of their employment is whether
the act was done while the servant was doing the master’s work no matter how irregularly, or with
what disregard of instructions” (internal quotation marks omitted)). As such, because any state law
claims against Defendants “would be barred in New York state courts, this Court equally lacks
jurisdiction over the claims.” Hassell, 96 F. Supp. 3d at 385. While this conclusion requires that
any claims pressed under New York state law be dismissed, it does not impact the viability of any
claims under federal law.2

2 Notably, the New York State Court of Claims denied Plaintiff’s unopposed motion to serve and file a late
notice of claim concerning the facts alleged herein. (See Opp. Br. at 27-35).
B. Eleventh Amendment
Insofar as Plaintiff seeks relief under 42 U.S.C. § 1983, Defendants argue that the claims
must be dismissed to the extent they seek “damages against Defendants in their official capacities
. . . .” (Def. Br. at 11). This argument is based upon the immunity provided under the Eleventh
Amendment. (Id.).

The Eleventh Amendment provides: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. This language has been interpreted to bar suits, even those arising under federal
law, against a state by one of its own citizens. Woods v. Rondout Valley Centr. Sch. Dist. Bd. of
Educ., 466 F.3d 232, 236 (2d Cir. 2006) (citing Hans v. Louisiana, 134 U.S. 1, 15 (1890)). “[A]s
a general rule, state governments may not be sued in federal court unless they have waived their
Eleventh Amendment immunity, or unless Congress has abrogated the states’ Eleventh
Amendment immunity when acting pursuant to its authority under Section 5 of the Fourteenth

Amendment.” Nelkenbaum v. Jordy, No. 19-CV-7953, 2020 WL 7630354, at *2 (S.D.N.Y. Dec.
22, 2020) (quoting Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (alteration in original)).
To that point, it is well settled that “New York has not waived its sovereign immunity in § 1983
lawsuits, nor has Congress abrogated the State’s immunity.” Phillips v. New York, No. 13-CV-
927, 2013 WL 5703629, at *3 (N.D.N.Y. Oct. 17, 2013) (citing Vincent v. Yelich, 718 F.3d 157,
177 (2d Cir. 2013)); see also Keitt v. New York City, 882 F. Supp. 2d 412, 424 (S.D.N.Y. 2011)
(“Magistrate Judge Freeman properly concluded that Keitt’s Section 1983, 1985, and 1986 claims
against the State of New York and its agencies are barred by the [Eleventh] Amendment.”).
Consequently, because the Eleventh Amendment deprives this Court of subject-matter
jurisdiction and neither exception applies, the claims for relief under 42 U.S.C. § 1983 are
dismissed under Rule 12(b)(1) to the extent they seek relief against Defendants in their official
capacities. This result does not affect the 42 U.S.C. § 1983 claims against Defendants in their
individual capacities; and therefore the Court must consider Defendants’ arguments for dismissal

under Rule 12(b)(6) as to those claims.
II. Failure to State a Claim Upon Which Relief Can Be Granted
A. Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought
with respect to prison conditions under section 1983 of this title, or any other Federal law, 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). This provision “applies to all
inmate suits about prison life, whether they involve general circumstances or particular
episodes,” Hernández v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009) (quoting Porter v. Nussle, 534

U.S. 516, 532 (2002)), and it is “‘mandatory’: [a]n inmate ‘shall’ bring ‘no action’ (or said more
conversationally, may not bring any action) absent exhaustion of available administrative
remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016) (citation omitted). “Moreover, the PLRA
‘requires proper exhaustion, which means using all steps that the prison grievance system holds
out.’” Ayala-Rosario v. Westchester Cty., No. 19-CV-3052, 2020 WL 3618190, at *4 (S.D.N.Y.
July 2, 2020) (quoting Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016)). This “means that
‘prisoners must complete the administrative review process in accordance with the applicable
procedural rules—rules that are defined not by the PLRA, but by the prison grievance process
itself.’” Gottesfeld v. Anderson, No. 18-CV-10836, 2020 WL 1082590, at *6 (S.D.N.Y. Mar. 6,
2020) (quoting Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012)). Compliance with the PLRA
“is an affirmative defense, not a pleading requirement, and therefore a motion to dismiss for failure
to exhaust may only be granted if it is clear from the face of the complaint that the plaintiff failed
to exhaust” his administrative remedies. See Gunn v. Beschler, No. 16-CV-6206, 2020 WL
7398751, at *4 (W.D.N.Y. Dec. 17, 2020). Such clarity exists here.

As an inmate in DOCCS’ custody, Plaintiff was required to follow a three-step process to
fully and completely exhaust the grievance process. See generally Amador v. Andrews, 655 F.3d
89, 96-97 (2d Cir. 2011) (outlining DOCCS’ three-step grievance process). First, a grievance must
be submitted to the Inmate Grievance Resolution Committee (“IGRC”), a facility-level body
consisting of inmates and facility staff members. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 701.4,
701.5(a)-(b). Second, should the inmate be dissatisfied with the conclusion reached by the IGRC,
he may appeal that decision to the superintendent of the facility within seven calendar days of
receiving the IGRC’s determination. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(c)(1). Finally,
if the superintendent’s conclusions are unfavorable, the inmate may appeal that decision to CORC

within seven calendar days of receiving the superintendent’s determination. N.Y. Comp. Codes R.
& Regs. tit. 7, § 701.5(d)(1)(i).
Plaintiff filed a grievance regarding this incident on May 25, 2017. (Compl. ¶ 22; Opp. Br.
at 6 (IGRC “Acknowledgment of Receipt” form), 7-13 (grievance)). Although it is not clear when
Plaintiff received the IGRC’s response—or what that determination was—he appealed that
determination to Griffin, the second step, on June 16, 2017. (Opp. Br. at 14-16). Griffin issued a
decision rejecting Plaintiff’s appeal on June 29, 2017. (Id. at 17). Plaintiff received Griffin’s
determination on July 3, 2017 (Compl. ¶ 22), and he attempted to appeal Griffin’s decision to
CORC on August 18, 2017 (id. ¶ 22; Opp. Br. at 17, 23-26). On or about September 8, 2017,
Plaintiff sought an extension of time within which to make his appeal to CORC, citing a variety
of exigent circumstances. (Opp. Br. at 18-22). On September 12, 2017, Plaintiff’s appeal to CORC
was rejected as untimely because seventy-five days had passed. (Dawkins Decl. Ex. A). Based
upon this information, it is clear on the face of the Complaint that Plaintiff had to take his appeal
to CORC by July 10, 2017 (i.e., seven calendar days after receipt). Plaintiff did not meet this

deadline and tried to appeal Griffin’s decision more than a month later. (Compl. ¶ 22; see also
Opp. Br. at 17, 23-26).
The remaining claims—those under 42 U.S.C. § 1983 against Defendants in their
individual capacities—are consequently dismissed for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6) in light of Plaintiff’s failure to exhaust his administrative remedies
under the PLRA.3
B. Failure to State a Conditions of Confinement Claim (Eighth Amendment)
Assuming, arguendo, that Plaintiff did exhaust his administrative remedies and the two
remaining claims could not be dismissed on that basis, the claim would nevertheless be dismissed

for its substantive failings. Reading the Complaint liberally, Plaintiff asserts one claim for relief
against each Defendant under 42 U.S.C. § 1983. That law provides, in pertinent part, that “[e]very
person who, under color of any statute . . . subjects, or causes to be subjected, any citizen of the
United States . . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured . . . .” 42 U.S.C. § 1983. “[T]his language

3 Plaintiff argued, in his opposition to the motion and in conclusory fashion, that he “attempted to exhaust
his administrative remedies but was on suicide watch on a hunger strike and was not provided mail, paper,
and pen. See attached.” (Opp. Br. at 3-4). Upon review of the documents attached to the opposition papers,
Plaintiff received medical attention and was housed at Green Haven’s infirmary sporadically between July
28, 2017 to September 5, 2017. (Id. 18-22). Although there are situations in which an inmate’s failure to
exhaust administrative remedies may be excused when the remedies are unavailable, see Thompson v.
Booth, No. 16-CV-03477, 2021 WL 918708, at *7 (S.D.N.Y. Mar. 10, 2021), the events Plaintiff cited
occurred almost three weeks after the deadline to appeal to CORC expired.
does not create substantive rights; rather, it creates a mechanism by which individuals can
vindicate the violation of rights secured elsewhere.” Santucci v. Levine, No. 17-CV-10204, 2021
WL 76337, at *3 (S.D.N.Y. Jan. 8, 2021). “As such, in each permutation of a claim under that law,
a plaintiff must demonstrate: (1) a right secured by the Constitution or laws of the United States
was violated, and (2) the right was violated by a person acting under color of state law, or a state

actor.” Williams v. Novoa, No. 19-CV-11545, 2021 WL 431445, at *5 (S.D.N.Y. Feb. 5, 2021)
(internal quotation marks omitted).
Defendants advance a variety of arguments as to why Plaintiff’s claims for relief should be
dismissed. The Court addresses these arguments seriatim.
1. Failure to Plead Defendants’ Personal Involvement
As a fundamental prerequisite “[t]o establish[ing] a § 1983 claim, a plaintiff must show the
defendants’ personal involvement in the alleged constitutional violation.” Boley v. Durets, 687 F.
App’x 40, 41 (2d Cir. 2017) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Failing to
allege that a defendant was personally involved in, or responsible for, the conduct complained of

renders a complaint “fatally defective on its face.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886
(2d Cir. 1987) (internal quotation marks omitted). Moreover, as recently emphasized by the
Second Circuit, the fact that a defendant is a supervisor is not enough to impute personal
involvement onto that actor; rather, “supervisory liability requires that the ‘defendant, through the
official’s own individual actions, has violated the Constitution.’” Novoa, 2021 WL 431445, at *6
(quoting Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)); see also Greene v. Sampson,
No. 18-CV-6103, 2021 WL 355477, at *4 (S.D.N.Y. Feb. 2, 2021). Here, Plaintiff failed to plead
facts suggesting Annucci’s personal involvement in the alleged constitutional violation, but
successfully implicated Griffin.
Annucci’s role in this action is limited to the following: (1) he is the Acting Commissioner
of DOCCS (Compl. ¶ 5); (2) he “acted pursuant to the policies, regulations or decisions officially
adopted or by . . . DOCCS” (id. ¶ 9); (3) he, “with deliberate indifference did cut off . . . Green
Haven . . . [and] expos[ed] plaintiff to bitter cold” (id. ¶ 11); (4) he was “personally involved in
subjecting plaintiff to prolonged periods of bitter cold” (id. ¶ 15); and (5) “in many ways . . . [he]

created an atmosphere of distrust, disrespect, dishonesty, distress, and deceit, perpetuating
miserable conditions . . . .” (id. ¶ 19). None of these facts, together or separately, allege plausibly
that Annucci was personally involved in the subject conduct. The first two allegations involve
Annucci based on his position in the DOCCS hierarchy; this is insufficient to establish personal
involvement. See Banks v. Annucci, 48 F. Supp. 3d 394, 416 (N.D.N.Y. 2014) (explaining that “a
mere ‘linkage’ to the unlawful conduct through the ‘chain of command’ . . . is insufficient to show
. . . personal involvement . . . .”). The three remaining allegations are conclusory and totally devoid
of any facts suggesting plausibly that Annucci was involved in turning the heat off at Green Haven.
See Murphy v. Spaulding, No. 20-CV-9013, 2020 WL 7248855, at *3 (S.D.N.Y. Dec. 7, 2020)

(claiming that the warden created an “atmosphere” permitting a violation to occur was insufficient
to allege personal involvement); Haywood v. Annucci, No. 18-CV-10913, 2020 WL 5751530, at
*5 (S.D.N.Y. Sept. 25, 2020) (noting that the plaintiff “offer[ed] no factual allegations suggesting
that Annucci was present for, knew of, or even had any reason to know about the alleged”
constitutional violation); Ford v. Aramark, No. 18-CV-2696, 2020 WL 377882, at *14 (S.D.N.Y.
Jan. 23, 2020) (dismissing claim against prison official where “the Complaint lack[ed] any non-
conclusory allegation” about that official’s personal involvement (emphasis in original)). As
Plaintiff has not alleged facts suggesting plausibly Annucci’s personal involvement, the claim
against Annucci must be dismissed.
Unlike Annucci, Plaintiff presented successfully facts suggesting plausibly that Griffin was
involved in the purported constitutional violation. Although Plaintiff pled that Griffin was involved
in the very same way as Annucci (see Compl. ¶¶ 6, 9, 11, 15, 19), in opposing Defendants’ motion
to dismiss, he produced a variety of documents connected to the internal grievances he filed.
Among those documents is a single page, dated June 29, 2017, entitled “HEAT TURNED OFF

TOO EARLY.” (Opp. Br. at 17). The body of that document reads:
The grievant complains that the heat was turned off too early.

According to the investigation, the heat was turned off on 4/27/17,
at the Superintendent’s discretion.

(Id.). Defendants ignore this document in their reply brief. (See generally Reply Br.). However, on
a motion to dismiss, the Court may consider properly “documents that a pro se litigant attaches to
his opposition papers.” Ceara v. Deacon, 68 F. Supp. 3d 402, 405 (S.D.N.Y. 2014) (internal
quotation marks omitted). Accordingly, because this document allows the Court to infer plausibly
that Griffin directed that the heat be turned off, Plaintiff pled that Griffin was personally involved
in the alleged constitutional violation.
2. Failure to Plead the Elements of the Claim for Relief
The Eighth Amendment4 instructs that “[e]xcessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted,” U.S. Const. amend. VIII, and the
Supreme Court has explained that the Eighth Amendment requires that prison officials “provide

4 Plaintiff’s claim is governed by the Eighth Amendment because he is a convicted prisoner. First, Plaintiff
pled affirmatively that he was a “state prisoner” and invokes his rights under the Eighth Amendment. (See
Compl. ¶¶ Prelim. Stmt., 4, 24). Second, Plaintiff provided his Department Identification Number or “DIN.”
(Id. ¶ 4). Searching Plaintiff’s DIN (03-B-2443) on the DOCCS inmate lookup website, Plaintiff was
convicted of Murder in the First Degree and Attempted Murder in the First Degree, was received by DOCCS
in October 2003, and is serving a term of life imprisonment. See Simmonds v. Family Dollar Store, No. 18-
CV-1241, 2018 WL 5447046, at *1 n.1 (E.D.N.Y. Oct. 25, 2018) (“The Court may take judicial notice of
Plaintiff’s DOCCS inmate lookup information.”); Jackson v. Sullivan Cty., No. 16-CV-3673, 2018 WL
1582506, at *5 n.8 (S.D.N.Y. Mar. 27, 2018).
humane conditions of confinement,” which include making sure “that inmates receive adequate
food, clothing, shelter, and medical care . . . .” Farmer v. Brennan, 511 U.S. 825, 832 (1994). In
order to state a claim for relief where, as here, relief is based on a theory that “the conditions of . .
. confinement constitute cruel and unusual punishment, the plaintiff must satisfy both an objective
test and a subjective test.” Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996) (citation omitted).

Under the first step of the analysis, conditions of confinement are objectively serious if the
plaintiff can 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). This
assessment is not “static,” as “[t]he conditions themselves must be evaluated in light of
contemporary standards of decency.” Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995). At the
motion to dismiss stage, the Court must determine whether the plaintiff’s allegations lead to the
plausible inference that the plaintiff was “deprived of [his] basic human needs—e.g., food,
clothing, shelter, medical care, and reasonable safety” or was “exposed to conditions that pose[d]
an unreasonable risk of serious damage to [his] future health.” Jabbar v. Fischer, 683 F.3d 54, 57

(2d Cir. 2012) (internal quotation marks omitted). As for the second step of the analysis, the
subjective element, a defendant:
cannot be found liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless the official knows
of and disregards an excessive risk to inmate health or safety; the
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.

Darnell v. Pineiro, 849 F.3d 17, 32 (2d Cir. 2017) (quoting Farmer, 511 U.S. at 837); see also
Reyes v. Wenderlich, 779 F. App’x 55, 56 (2d Cir. 2019) (noting that a plaintiff “must demonstrate
that, subjectively, prison staff acted with deliberate indifference . . . in failing to address the
purported danger” (internal quotation marks omitted)).
It is well-established in the Second Circuit that an inmate may state a conditions of
confinement claim under the Eighth Amendment as a result of exposure to excessive cold. See,
e.g., Wenderlich, 779 F. App’x at 56 (“We have held that inmates’ prolonged exposure to subzero
temperatures violates the Eighth Amendment.”); Brown v. New York, No. 20-CV-6042, 2020 WL
3630388, at *5 (W.D.N.Y. June 26, 2020) (“An Eighth Amendment claim may be established by

proof that the inmate was subjected to a prolonged period of bitter cold.” (quoting Gaston v.
Coughlin, 249 F.3d 156, 164 (2d Cir. 2001))); Henry v. Doe, No. 19-CV-10153, 2020 WL 209091,
at *6 (S.D.N.Y. Jan. 10, 2020) (“A prisoner may successfully state a claim of deliberate
indifference if he alleges that he was exposed to extreme cold for long periods of time.”); Collins
v. Fischer, No. 15-CV-103, 2018 WL 1626528, at *6 (S.D.N.Y. Mar. 30, 2018) (“Various courts,
including the Second Circuit, have held that excessively hot or cold temperatures may qualify as
a constitutional violation.”). However, while “[d]istrict courts in the Second Circuit have . . . found
allegations of exposure to uncomfortable temperatures for short periods of time insufficient to state
an Eighth Amendment claim,” Collins, 2018 WL 1626528, at *7 (collecting cases), “[c]ases where

plaintiffs have succeeded . . . involve allegations of exposure to freezing or near-freezing
temperatures for a more prolonged period of time than eleven hours.” Ford, 2020 WL 377882, at
*7 (quoting Brims v. Ramapo Police Dep’t, No. 11-CV-712, 2011 WL 7101233, at *5 (S.D.N.Y.
Dec. 23, 2011)).
Here, Plaintiff’s claim is that it was a constitutional violation for him to be exposed to
“bitter cold temperatures” which fell “between 40˚ and 45˚” during the day and the “low 30˚s” at
night during one “unseasonably” cold month during the spring of 2017. (Compl. ¶¶ 11-12, 14).
These allegations are conclusory and wholly insufficient to meet the objective element of the
analysis. Plaintiff states neither when, specifically, he was exposed to the frigid temperatures, the
length of any period of exposure, nor whether these temperatures were readings from inside or
outside the facility. (See generally id.). The fact that these details are unstated prevents the Court
from concluding that Plaintiff pled plausibly that he was objectively exposed to conditions posing
a risk to his health. See Collins, 2018 WL 1626528, at *7 (dismissing plaintiff’s claim because he
did not allege “how cold the temperature in the cell actually was” or “how long he was exposed to

the ‘very cold’ temperature”); see also Lopez v. Phipps, No. 18-CV-3605, 2019 WL 2504097, at
*8 (E.D.N.Y. June 17, 2019) (dismissing pretrial detainee’s conditions of confinement claim for
failure to plead facts supporting the objective prong where he pled that “on a particular evening,
he experienced freezing temperatures, but [did] not plead the length of his confinement or how
these conditions affected his health”); cf. Wingate v. Robert N. Davoren Ctr., No. 12-CV-5521,
2013 WL 4856573, at *3 (S.D.N.Y. Sept. 10, 2013) (denying motion to dismiss plaintiff’s claim
based on excessive heat where he pled that “he was exposed to ‘90 plus degree [temperatures]
everyday’ for seven days” (alteration in original)). In short, the claim must be dismissed because
the failure to provide specific facts as to the objective prong has prevented Plaintiff from pushing

his claim “across the line from conceivable to plausible.” See Twombly, 550 U.S. at 570.
However, even if Plaintiff pled facts sufficient to state the objective element of this claim,
it would nevertheless be dismissed in light of Plaintiff’s failure to plead Griffin’s deliberate
indifference. While Griffin may have directed that the heat be turned off, there is no allegation that
Griffin was actually aware that Plaintiff—or any other inmate—was exposed to freezing
temperatures at any point during the spring of 2017. See Brown, 2020 WL 3630388, at *5
(concluding that, even if the plaintiff “met the objective prong,” he offered no facts establishing
that any defendant knew about the cold conditions).
Plaintiff’s conditions of confinement claim is, therefore, dismissed under Rule 12(b)(6).
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. While “[d]istrict
courts should frequently provide leave to amend before dismissing a pro se complaint . . . leave to
amend is not necessary when it would be futile.” Reed v. Friedman Mgmt. Corp., 541 F. App’x
40, 41 (2d Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). In this case,

the Complaint is dismissed with prejudice because any amendment would be futile.
The Clerk of the Court is respectfully directed to terminate the motion sequence pending
at Doc. 16, mail a copy of this Memorandum Opinion and Order to Plaintiff, and close this case.5

SO ORDERED:
Dated: White Plains, New York
April 29, 2021

PHILIP M. HALPERN
United States District Judge

5 Given the conclusions reached herein, the Court need not and does not address Defendants’ remaining
argument as to qualified immunity.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10331768. Public record. Not legal advice.