# Jackson v. Annucci

> District Court, S.D. New York · June 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10333051

## Case

- **Court:** District Court, S.D. New York
- **Decided:** June 23, 2021
- **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/10333051

## How later opinions describe it (automated extraction)

- holding that loss of commissary, recreation, package, and telephone privileges does not amount to an atypical and significant deprivation

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LAVOGIA JACKSON,
MEMORANDUM OPINION
Plaintiff,
AND ORDER

-against-
20-CV-02008 (PMH)
ANNUCCI, et al.,

Defendants.
PHILIP M. HALPERN, United States District Judge:
Plaintiff Lavogia Jackson (“Plaintiff”), proceeding pro se and in forma pauperis, brings
this action under 42 U.S.C. § 1983 against Anthony J. Annucci (“Annucci”), Donald Venettozzi
(“Venettozzi”), Michael Royce (“Royce”), Eric Gutwein (“Gutwein”), Derek Deegan (“Deegan”),
Rosita Rossy (“Rossy”),1 William Rivera (“Rivera”), and Raymond Dahl (“Dahl,” and
collectively, “Defendants”) for violating his constitutional rights while he was incarcerated at
Green Haven Correctional Facility (“Green Haven”). (Doc. 40, “Am Compl.”). Plaintiff asserts
five claims for relief: (1) unspecified Eighth and Fourteenth Amendment violations; (2) deliberate
indifference to his medical needs in violation of the Eighth Amendment; (3) conditions of
confinement in violation of the Eighth Amendment; (4) deprivation of procedural due process
rights in violation of the Fourteenth Amendment; and (5) conspiracy to retaliate against him for
engaging in protected activity in violation of the First Amendment. Plaintiff also appears to bring

1 Although Plaintiff spells Rossy’s name as “Rossi” throughout the Amended Complaint (see generally
Am. Compl.), it appears, based on Defendants’ briefs and publicly available court filings, that “Rossy” is
the correct spelling. (See generally Defs. Br., Defs. Reply); see also Bonie v. Annucci, No. 20-CV-640,
2020 WL 2489063, at *3 (S.D.N.Y. May 14, 2020); Matthews v. Barq, No. 18-CV-855, 2021 WL 1582255,
at *1 (N.D.N.Y. Jan. 12, 2021), adopted by 2021 WL 1135452 (N.D.N.Y. Mar. 25, 2021).
claims for relief based on violations of New York State Department of Corrections and Community
Supervision (“DOCCS”) directives and associated regulations.2
Plaintiff filed his original Complaint on March 4, 2020. (Doc. 2). On October 29, 2020,
Plaintiff sought leave to file an Amended Complaint, and annexed a proposed Amended Complaint

to his motion. (Doc. 35). On October 30, 2020, the Court granted Plaintiff’s motion for leave to
file an Amended Complaint, construed Plaintiff’s proposed Amended Complaint as asserting
claims against the same Defendants named in Plaintiff’s original Complaint, and directed the Clerk
of Court to separately docket Plaintiff’s Amended Complaint. (Doc. 39).
On December 4, 2020, Defendants filed a motion to dismiss the Amended Complaint under
Federal Rule of Civil Procedure 12(b)(6). (Docs. 43-45). On December 7, 2020, the Court sua
sponte denied Defendants’ motion to dismiss without prejudice to renewal because Defendants
failed to first request a pre-motion conference in compliance with Rule 2(C) of this Court’s
Individual Practice. (Doc. 46). On December 18, 2020, Defendants filed a letter requesting a pre-
motion conference in advance of filing a motion to dismiss. (Doc. 48). On December 29, 2020,

Plaintiff requested an extension of time to respond to Defendants’ already-denied motion to
dismiss. (Doc. 50). On December 30, 2020, the Court granted Defendants leave to move to dismiss
Plaintiff’s Amended Complaint. (Doc. 51).
On January 29, 2021, Defendants re-filed their motion to dismiss. (Doc. 61; Doc. 62, “Defs.
Br.”). On March 5, 2021, Plaintiff filed three documents in response: (1) a document containing

2 To the extent that Plaintiff brings claims for failure to comply with DOCCS directives or related
regulations, those claims are not actionable, and are therefore, dismissed. See Hyman v. Holder, No. 96-
CV-7748, 2001 WL 262665, at *4 (S.D.N.Y. Mar. 15, 2001) (holding that failure to follow a DOCCS prison
regulation “does not give rise to a constitutional violation”); see also Rasheen v. Adner, 356 F. Supp. 3d
222, 236 (N.D.N.Y. 2019) (“[A] Section 1983 claim brought in federal court is not the appropriate forum
to raise violations of prison regulations.”); Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (“[T]he violation
of 7 N.Y.C.R.R. § 251-5.1(a) alone would not be enough generally to establish a constitutional claim.”).
his “objections” and several exhibits (Doc. 65); (2) a memorandum of law in support of his
opposition to Defendants’ motion to dismiss (Doc. 66, “Pl. Opp.”);3 and (3) a declaration for entry
of a default judgment against Defendants (Doc. 67). On March 22, 2021, Defendants filed their
reply memorandum of law in further support of their motion to dismiss and in opposition to

Plaintiff’s motion for default judgment. (Doc. 70, “Defs. Reply”).
For the following reasons, Defendants’ motion to dismiss is GRANTED.
BACKGROUND
Plaintiff was an inmate at Green Haven.4 (Am. Compl. at 1).5 On September 3, 2019, Rossy
(a Sergeant at Green Haven) directed two unidentified male correction officers to “pat frisk”
Plaintiff. (Id. ¶ 2). At the time of the “pat frisk,” Plaintiff was wearing “medically issued” back
and knee braces. (Id. ¶ 4). Plaintiff’s permit for these braces, however, was expired by one day.
(Id. ¶ 5). Given the permit’s expiration, Rossy ordered that the back and knee braces be confiscated
and “placed in the H-Block officer’s cage until” Plaintiff received a new medical permit. (Id. ¶ 6).
On September 10, 2019, Plaintiff received a new medical permit, went to the H-Block, and

requested that the back and knee braces be returned to him. (Id. ¶¶ 7-8). The braces, however, were

3 Plaintiff, through his opposition brief, purports to move for a default judgment against Defendants. (See
Pl. Opp. at 4.). First, Plaintiff’s motion is incorrectly predicated on Defendants’ failure to answer the
Amended Complaint. Defendants, obviously, have moved to dismiss the Amended Complaint. Second, a
motion for a default judgment must be brought in a separate motion. Cf. Keesh v. Quick, No. 19-CV-08942,
2021 WL 639530, at *12 (S.D.N.Y. Feb. 17, 2021) (denying motion for Rule 11 sanctions made in
opposition brief); Corr. Officers Benevolent Ass’n of Rockland Cty. v. Kralik, No. 04-CV-2199, 2011 WL
1236135, at *1 n.2 (S.D.N.Y. Mar. 30, 2011) (declining to consider a “cross-motion” where plaintiffs
requested relief via an opposition to a motion, without filing a notice of motion). Plaintiff’s motion for a
default judgment is therefore procedurally improper and denied. To the extent possible, the Court will
consider Plaintiff’s “objections” as opposition to the motion to dismiss.

4 Plaintiff informed the Court, by letter dated May 16, 2021, that he is now incarcerated in Eastern
Correctional Facility. (Doc. 76).

5 Where Plaintiff does not cite to numbered paragraphs in the Amended Complaint, citations to page
numbers in the Amended Complaint correspond to the pagination generated by ECF.
missing. (Id.). Plaintiff filed a grievance against Rossy that day for confiscating his braces. (Id. ¶
9).
Nearly a month later, on October 11, 2019, Plaintiff was informed by Deegan (a Lieutenant
at Green Haven) that Plaintiff had been randomly selected for drug testing and was ordered to

provide a urine sample. (Id. ¶¶ 11-12). Plaintiff’s urine sample was stored in a refrigerator, where
it remained until October 17, 2019, when Dahl (a Correction Officer at Green Haven) removed it
to complete the drug test. (Id. ¶ 13). Plaintiff’s urine sample was tested using the Indiko Plus
urinalysis system, which, at the time, was a new drug testing system being used by DOCCS.6 (Id.
at 16). Plaintiff’s sample tested positive.7 (Id.). Plaintiff was thereafter placed in “keeplock”
confinement and charged with violating DOCCS Rule 113.24, which prohibits inmates from using
narcotics or controlled substances without a prescription. (Id. ¶ 14). That same day, Royce (the
Superintendent of Green Haven) was allegedly informed that Plaintiff had been placed in
“keeplock” confinement for such violation. (Id. at 21).
On October 21, 2019, in advance of his disciplinary hearing, Plaintiff requested six

documents: (1) “urinalysis drug testing directive #4937”; (2) “7 NYCRR Chapter V Standards and
Procedures for Disciplining Inmates”; (3) “Reasonable Accommodations for Persons with
Disabilities”; (4) “the freezer log book for where the plaintiff’s sample had been purportedly stored

6 Plaintiff alleges that the Indiko Plus machine used for his drug test was known to produce unreliable test
results. (Am. Compl. at 16). Specifically, in September 2019—before Plaintiff’s drug test—Plaintiff alleges
that Annucci ordered that sanctions connected to positive test results for suboxone and buprenorphine
produced by the Indiko Plus machine be reversed. (Id.). And in November 2019, Annucci allegedly issued
a statewide memorandum regarding false positive test results produced by the Indiko Plus machine. (Id. at
19).

7 Neither Plaintiff, nor Defendants, identify the drug for which Plaintiff’s urine sample allegedly tested
positive. But based on the line of questioning directed at the representative for the company that
manufactures the Indiko Plus machine, it appears that Plaintiff may have tested positive for marijuana. (Am.
Compl. ¶ 32).
. . . [and] all person(s) who had accessed that freezer from [October 11, 2019] – date of collection
of [Plaintiff’s] sample, until [October 17, 2019] – the date of its removal from that freezer”; (5)
“the proficiency reports a study that illustrates how the tester performed on a random blind
independent test sample”; and (6) “[Dahl’s] certification for th[e] new Indiko Plus urinalysis

testing procedure system.” (Id. ¶¶ 16-17). Plaintiff was provided with documents (1)-(3), but not
documents (4)-(6). (Id. ¶ 18). He was also provided with a “chain of custody form.” (Id. ¶ 22).
Plaintiff’s disciplinary hearing commenced on October 23, 2019. (Id. ¶¶ 20-23). At the
hearing, Plaintiff lodged three objections: (1) he was not provided with all the documents he
requested (id. ¶ 24); (2) Gutwein (the disciplinary hearing officer) “engaged in a loud conversation
with several people,” including Rivera (a Correction Officer at Green Haven), about the denial of
Plaintiff’s request for certain documents (id. ¶¶ 20-22); and (3) Plaintiff was not given sufficient
time to review the documents that he was provided (id. ¶ 24). Plaintiff pled not guilty to the
charging document. (Id.). Gutwein then adjourned Plaintiff’s hearing. (Id.).
On October 28, 2019, Green Haven “was placed on lockdown.” (Id. ¶ 25). Plaintiff wrote

a letter to Venettozzi (Director of Special Housing Unit, DOCCS) to inform him of the
“lockdown,” and that Plaintiff’s hearing “was to be completed by October 30, 2019.” (Id.). Plaintiff
also included in his letter that, “should anyone seek an extension of time” to conduct the hearing
beyond the fourteen-day timeline contemplated by N.Y. Comp. Codes R. & Regs. tit. 7, § 251.1-
5.1, “[he] would like a copy of said request [and] the day said extension was granted . . . .” (Id.).8
Plaintiff’s letter was not acknowledged. (Id.).

8 “The disciplinary hearing or superintendent’s hearing must be completed within 14 days following the
writing of the misbehavior report unless otherwise authorized by the commissioner or his designee. Where
a delay is authorized, the record of the hearing should reflect the reasons for any delay or adjournment, and
an inmate should ordinarily be made aware of these reasons unless to do so would jeopardize institutional
safety or correctional goals.” N.Y. Comp. Codes R. & Regs. tit. 7, § 251.1-5.1(b) (emphasis added).
Plaintiff’s disciplinary hearing resumed on November 4, 2019, despite Plaintiff’s objection
that Gutwein failed to properly notify Plaintiff that the date of his hearing had been extended
beyond the fourteen-day timeline contemplated by N.Y. Comp. Codes R. & Regs. tit. 7, § 251.1-
5.1(b). (Id. ¶ 26). Gutwein, allegedly without explanation, would not give Plaintiff a copy of the

authorization that had been obtained to extend the date of Plaintiff’s hearing. (Id. ¶ 27). Gutwein
continued the hearing and called Deegan and Dahl as witnesses. (Id. ¶¶ 27, 29-30). In response to
Plaintiff’s questioning, Dahl testified that the names of the individuals who accessed the
refrigerator in which Plaintiff’s urine sample had been stored were recorded on the “chain of
custody form” that had been given to Plaintiff. (Id. ¶ 27). But Dahl allegedly did not provide the
names of everyone who had accessed the refrigerator from October 11, 2019 (the date of
collection) until October 17, 2019 (the date of removal and testing). (Id.). Dahl also testified that
he was no longer required to comply with Directive No. 4937,9 because he was using the new
Indiko Plus urinalysis machine. (Id.). Deegan testified that he did not personally submit a request
to have Plaintiff tested for drugs; rather, the request was randomly generated by a computer. (Id.

¶ 29). Deegan did not explain why this information was not provided on the “request for urinalysis
test form.” (Id.). Plaintiff was not satisfied with Dahl and Deegan’s responses to his questions. (Id.
¶¶ 27, 30). Gutwein denied Plaintiff’s request for additional witnesses as redundant and further
adjourned the hearing. (Id. ¶ 31).
On November 7, 2019, Plaintiff was permitted to question a representative of the company
that manufactured the Indiko Plus machine used by DOCCS to test Plaintiff’s urine for drugs. (Id.

9 DOCCS Directive No. 4937 governs urinalysis testing of incarcerated individuals at DOCCS facilities.
See Taylor v. New York Dep’t of Corr. Servs., No. 10-CV-140, 2012 WL 913678, at *3 (N.D.N.Y. Feb. 23,
2012), adopted sub nom. by Taylor v. New York Dep’t of Corr., No. 10-CV-140, 2012 WL 913564
(N.D.N.Y. Mar. 16, 2012).
¶ 32). Plaintiff asked the representative about testing for [tetrahydrocannabinol]—the psychoactive
compound in marijuana. (Id.). Gutwein then denied Plaintiff’s request to recall Deegan as a
witness. (Id. ¶ 33). Plaintiff also requested to call Rivera to testify about requesting a “false
extension . . . of time” to conduct the disciplinary hearing in violation of N.Y. Comp. Codes R. &

Regs. tit. 7, § 251.1-5.1. (Id. ¶ 34). Gutwein denied this request as redundant. (Id.). He then
concluded the hearing by finding Plaintiff guilty of violating DOCCS Rule 113.24 and imposed
the following sanctions: pre-hearing “keeplock” confinement for twenty-one days; post-hearing
“keeplock” confinement for thirty-nine days; loss of recreation for ninety days; loss of packages
for ninety days; loss of commissary for ninety days; loss of phone use for ninety days; loss of
property for ninety days; and loss of personal property for ninety days. (Id. ¶ 35). Thereafter,
Plaintiff was held at the disciplinary hearing office while correction officers confiscated personal
property in Plaintiff’s cell, including: books, writing instruments, paper, hygiene products,
clothing, a bible, family photographs, and eating utensils. (Id. ¶ 36).
Plaintiff appealed Gutwein’s guilty determination. (Id. at 20). On January 8, 2020,

Venettozzi reviewed and affirmed this determination; approximately two weeks later, however, on
January 22, 2020, Venettozzi reversed his decision. (Id. at 19-20). This suit followed.
STANDARD OF REVIEW
On a Rule 12(b)(6) motion, a court may 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 ple[d] factual
content 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 acted
unlawfully.” Id. 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 Just., 218 F. Supp. 2d 357 (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 of a pro se complaint
is nevertheless appropriate 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 also has 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)).
ANALYSIS
I. Section 1983 Claims
Construing the Amended Complaint liberally, Plaintiff asserts several claims for relief

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 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.’” Town & Country Adult
Living, Inc. v. Vill./Town of Mount Kisco, No. 17-CV-8586, 2019 WL 1368560, at *17 (S.D.N.Y.
Mar. 26, 2019) (quoting Walker v. Clemson, No. 11-CV-9623, 2012 WL 2335865, at *3 (S.D.N.Y.
June 20, 2012)).
The Court will address the plausibility of Plaintiff’s claims for relief seriatim.

A. Plaintiff’s First Claim for Relief: Eighth and Fourteenth Amendment Violations
With respect to this claim for relief, as a threshold matter, “[t]o establish 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)); see also Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (noting that
supervisory liability requires that the “defendant, through the official’s own individual actions, has
violated the Constitution” (quoting Iqbal, 556 U.S. at 676)); Greene v. Sampson, No. 18-CV-6103,
2021 WL 355477, at *4 (S.D.N.Y. Feb. 2, 2021). “[T]here is no respondeat superior liability
under § 1983.” Jamison v. Fischer, No. 11-CV-4697, 2012 WL 4767173, at *4 (S.D.N.Y. Sept.
27, 2012). Failure to allege a defendant’s personal involvement renders a “complaint . . . ‘fatally

defective’ on its face.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (quoting
Black v. United States, 534 F.2d 524, 527-28 (2d Cir. 1976)). Here, Plaintiff fails to allege personal
involvement with respect to all claims for relief against Annucci, Royce, and Venetozzi arising
from alleged Eighth Amendment conditions of confinement and Fourteenth Amendment
procedural due process violations.
Regarding Annucci, the Court agrees with Defendants that Plaintiff’s claims are “solely
based on [Annucci’s] position as Acting Commissioner of [DOCCS].” (Defs. Br. at 7). According
to Plaintiff, in September 2019, Annucci ordered the reversal of guilty determinations that resulted
from positive test results for suboxone and buprenorphine produced by the Indiko Plus machine.
(Am. Compl. at 16). Plaintiff also alleges that, in November 2019, Annucci issued a statewide
memorandum regarding false positive test results produced by the Indiko Plus machine. (Id. at 19).
As a result, Plaintiff alleges that, due to the “continued use” of the Indiko Plus machine, Annucci
“knew” of the risk that Plaintiff would be found guilty based on false positive results. (Id. at 17).

But that conclusory allegation does not connect Annucci to the specific constitutional violations
that Plaintiff alleges. Indeed, Plaintiff does not explain how or whether Annucci’s modification of
decisions rendered in connection with false positive tests for suboxone and buprenorphine relate
to his own positive test for an unknown substance. Rather, Plaintiff’s allegations are merely based
on Annucci’s “‘high position of authority’ at DOCCS,” and Plaintiff’s belief that, based on this
position, Annucci necessarily had knowledge of and personal involvement in the alleged
misconduct. See Allah v. Annucci, No. 16-CV-1841, 2018 WL 4571679, at *6 (S.D.N.Y. Sept. 24,
2018) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Such allegations are insufficient
to establish Annucci’s personal involvement. See id.; see also Victory v. Pataki, 814 F.3d 47, 67
(2d Cir. 2016) (“[A] defendant in a § 1983 action may not be held liable for damages for

constitutional violations merely because he held a high position of authority.” (internal quotation
marks omitted)); Hernandez v. Keane, 341 F.3d 137, 144-45 (2d Cir. 2003) (“‘Absent some
personal involvement by [the supervisory official] in the allegedly unlawful conduct of his
subordinates,’ he cannot be liable under section 1983.” (quoting Gill v. Mooney, 824 F.2d 192,
196 (2d Cir.1987))). Accordingly, all claims for relief against Annucci are dismissed.
As for Royce, Plaintiff alleges that he was notified of Plaintiff’s confinement, and that such
notification would have indicated that Plaintiff’s positive drug test was obtained using the
allegedly faulty Indiko Plus machine. (Am. Compl. at 21). But it is well-established that
“[m]ere notice of alleged wrongdoing is insufficient to establish a supervisor’s or
administrator’[s] personal involvement.” Gibson v. Comm’r of Mental Health, No. 04-CV-4350,
2008 WL 4276208, at *8 (S.D.N.Y. Sept. 17, 2008); see also McNair v. Kirby Forensic Psychiatric
Ctr., No. 09-CV-6660, 2010 WL 4446772, at *13 (S.D.N.Y. Nov. 5, 2010). Without more, Royce
cannot be held liable for any alleged constitutional violations. Therefore, all claims for relief

against Royce are also dismissed.
With respect to Venettozzi, Plaintiff maintains that by reviewing and affirming Plaintiff’s
guilty determination, he was made aware of the alleged procedural due process violations at the
hearing below, and thus was personally involved. (Am. Compl. at 19-20). But “[c]ourts within this
Circuit are split as to whether a prison official who simply denies an inmate’s administrative appeal
from a disciplinary hearing can be held liable under § 1983.” Ortiz v. Russo, No. 13-CV-5317,
2015 WL 1427247, at *13 (S.D.N.Y. Mar. 27, 2015). Some courts have held that an appeal officer
may be held liable for failure to correct procedural due process violations that occurred at the
disciplinary hearing below, see Lebron v. Mrzyglod, No. 14-CV-10290, 2017 WL 365493, at *9
(S.D.N.Y. Jan. 24, 2017); see also Colon v. Annucci, 344 F. Supp. 3d 612, 631 (S.D.N.Y. 2018);

McGriff v. Keyser, No. 17-CV-7307, 2019 WL 6033421, at *8-9 (S.D.N.Y. Nov. 13, 2019), while
others have held that “a prison official who denies an inmate’s administrative appeal from a
disciplinary hearing can be held liable under § 1983 only if the violation complained of was still
‘ongoing’ at the time of the appeal, such that he or she could have remedied the violation directly,”
Jamison, 2012 WL 4767173, at *4; see also Ortiz, 2015 WL 1427247, at *14; Koehl v. Bernstein,
No. 10-CV-3808, 2011 WL 2436817, at *10 (S.D.N.Y. June 17, 2011), adopted by 2011 WL
4390007 (S.D.N.Y. Sept. 21, 2011). This Court finds the latter view persuasive, but need not reach
a conclusion as to Venettozzi’s personal involvement at this juncture, because in any event, the
split in guidance entitles Venettozzi to qualified immunity. See Colon, 344 F. Supp. 3d at 631
(“Venettozzi is entitled to qualified immunity for his affirmance of [p]laintiff’s Tier III Hearing
disposition.”); see also McGriff, No. 17-CV-7307, 2019 WL 6033421, at *9 (S.D.N.Y. Nov. 13,
2019) (same); Lebron, 2017 WL 365493, at *9 (finding that “qualified immunity attaches” because
“not every reasonable official would understand that” “failure to correct a procedural due process

violation on appeal violates an inmate’s constitutional rights”). Accordingly, all claims for relief
against Venettozzi are dismissed.
B. Plaintiff’s Second Claim for Relief: Deliberate Indifference to Plaintiff’s Medical
Needs (Eighth Amendment)

Plaintiff alleges that Rossy violated his Eighth Amendment rights when she confiscated
Plaintiff’s back and knee braces. (Am. Compl. at 21-22). “In order to establish an Eighth
Amendment claim arising out of inadequate medical care, a prisoner must prove ‘deliberate
indifference to his serious medical needs.’” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)
(quoting Estelle, 429 U.S. at 104) (brackets omitted)). “A plaintiff can prevail on a deliberate
indifference to medical needs claim under the Eighth Amendment by satisfying a two-prong test.”
Sutton v. Rodriguez, No. 18-CV-01042, 2020 WL 5504312, at *4 (S.D.N.Y. Sept. 8, 2020).
The first prong is objective and requires that the alleged deprivation
in medical care be sufficiently serious. A deprivation in medical care
is sufficiently serious if (1) the prisoner was actually deprived of
adequate medical care and (2) the inadequacy in medical care is
sufficiently serious. The latter inquiry contemplates a condition of
urgency that may result in degeneration or extreme pain. . . . The
second prong of the deliberate indifference test under the Eighth
Amendment is subjective and requires that the plaintiff demonstrate
that the defendant had a sufficiently culpable state of mind. A
defendant had a sufficiently culpable state of mind if he acted or
failed to act while actually aware of a substantial risk that serious
inmate harm will result.

Id. *4-5. (internal citations and quotation marks omitted). Plaintiff satisfies neither prong.
First, Plaintiff does not allege a “sufficiently serious” deprivation of medical care. Id. at
*4. A “sufficiently serious” deprivation results in “more than minor discomfort or injury.” Cain v.
Jackson, No. 05-CV-3914, 2007 WL 2193997, at *5 (S.D.N.Y. July 27, 2007). To be “sufficiently
serious,” the deprivation must create a “condition of urgency, one that may produce death,

degeneration, or extreme pain.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). Although
Plaintiff apparently suffers from some degree of back and knee pain, he does not specify the
conditions for which he was prescribed braces as treatment.10 Notably, Plaintiff does not allege
that he suffered any discomfort, let alone any “condition[s] of urgency,” after his braces were
confiscated. Martin v. Mihalik, No. 19-CV-7979, 2021 WL 1738458, at *8 (S.D.N.Y. May 3,
2021) (finding that plaintiff failed to allege objective prong of Eighth Amendment standard where
plaintiff did not allege any harm as a result of alleged deprivation); Sutton, 2020 WL 5504312, at
*5.
Second, Plaintiff does not allege that Rossy acted with a “sufficiently culpable state of
mind” when she confiscated Plaintiff’s back and knee braces. Sutton, 2020 WL 5504312, at *5.

Plaintiff’s own allegations show that Rossy confiscated these items not because she intended to

10 The Court is skeptical that Plaintiff’s knee problem would constitute a “serious medical need[].” Chance,
143 F.3d at 702; see, e.g., Dinkins v. New York, No. 19-CV-08447, 2020 WL 5659554, at *9 (S.D.N.Y.
Sept. 23, 2020) (finding that plaintiff’s “knee problem” did not constitute a “serious medical need”); Taylor
v. Kurtz, No. 00-CV-700, 2004 WL 2414847, at *4 (W.D.N.Y. Oct. 28, 2004) (“Courts in this circuit . . .
have often considered knee injuries and have consistently found that such injuries are insufficient to support
a § 1983 claim based on deliberate indifference under the Eighth Amendment.”); Sharp v. Jeanty, No. 93-
CV-0220, 1993 WL 498095, at *2 (S.D.N.Y. Nov. 30, 1993) (finding that knee pain, which was repeatedly
ignored and ultimately required surgery, does not alone “meet the Eighth Amendment standard”). As for
Plaintiff’s back pain, absent more detailed allegations regarding the associated medical issue, the Court is
unable to opine on its severity. See Mendoza v. McGinnis, No. 05-CV-1124, 2008 WL 4239760, at *10
(N.D.N.Y. Sept. 11, 2008) (“The question of whether chronic back pain can rise to a level of constitutional
significance is dependent upon the circumstances of the particular case presented.”).
inflict pain, but rather, because Plaintiff’s medical permit had expired.11 (Am. Compl. ¶ 5). Further,
Plaintiff does not allege that Rossy had any reason to believe that her actions would result in a
“substantial risk [of] serious inmate harm.” Sutton, 2020 WL 5504312, at *5. It follows, then, that
Plaintiff’s deliberate indifference claim against Rossy is dismissed. See Aikens v. Rao, No. 13-CV-

1088S, 2015 WL 5919950, at *8 (W.D.N.Y. Oct. 9, 2015) (dismissing plaintiff’s deliberate
indifference claim arising from confiscation of back brace due to lack of permit).
C. Plaintiff’s Third Claim for Relief: Conditions of Plaintiff’s Confinement (Eighth
Amendment)

Next, Plaintiff brings an Eighth Amendment conditions of confinement claim against
Gutwein12 in connection with the sanctions that he imposed following his determination that
Plaintiff violated DOCCS’s drug policy. (Am. Compl. ¶ 36). Specifically, Plaintiff alleges that the
removal of his personal belongings from his cell following the guilty determination violated the
Eighth Amendment. (Id.). To state an Eighth Amendment conditions of confinement claim,
Plaintiff “must satisfy both an objective test and a subjective test.” Gunn v. Annucci, No. 20-CV-
02004, 2021 WL 1699949, at *8 (S.D.N.Y. Apr. 29, 2021) (quoting Jolly v. Coughlin, 76 F.3d

11 Plaintiff does not allege that Rossy caused his back and knee braces to go missing from the H-Block. He
merely alleges that she confiscated them. (Am. Compl. ¶ 5). That Plaintiff’s braces ultimately went missing
does not factor into the Court’s analysis of Rossy’s liability, as she is not alleged to have been personally
involved in that incident. See Boley, 687 F. App’x at 41 (citing Wright, 21 F.3d at 501) (“To establish a §
1983 claim, a plaintiff must show the defendants’ personal involvement in the alleged constitutional
violation.”); see also Alfaro Motors, Inc., 814 F.2d at 886 (quoting Black, 534 F.2d at 527-28) (failure to
allege personal involvement renders a “complaint ‘fatally defective’ on its face”).

12 Plaintiff also brings this claim against Deegan, Dahl, and Royce. But, as discussed in § I.A.1., supra, all
claims for relief against Royce are dismissed for lack of personal involvement. And none of Plaintiff’s
allegations involving Deegan and Dahl have anything to do with Plaintiff’s conditions of confinement. The
Eighth Amendment conditions of confinement claim for relief against Deegan, Dahl, and Royce is,
therefore, dismissed. See Boley, 687 F. App’x at 41 (2d Cir. 2017) (citing Wright, 21 F.3d at 501) (“To
establish a § 1983 claim, a plaintiff must show the defendants’ personal involvement in the alleged
constitutional violation.”); see also Alfaro Motors, Inc., 814 F.2d at 886 (quoting Black, 534 F.2d at 527-
28) (failure to allege personal involvement renders a “complaint ‘fatally defective’ on its face”).
468, 480 (2d Cir. 2006)). “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.’” Id. (quoting 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.’” Id. (quoting 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.’” Id. (quoting 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 v. Brennan, 511 U.S. 825, 837
(1994) (internal quotations omitted)); 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)). Plaintiff satisfies neither test.
First, the temporary confiscation of personal belongings did not subject Plaintiff to “an
unreasonable risk of serious damage to his health,” and therefore, did not run afoul of the Eighth
Amendment. Schult, 717 F.3d at 125. Courts in the Second Circuit have consistently expressed
this view. See, e.g., Dixon v. Goord, 224 F. Supp. 2d 739, 748-49 (S.D.N.Y. 2002) (“[A]llegations
of having been cut off from . . . personal property . . . are not violations of the Eighth
Amendment.”); Myers v. City of N.Y., No. 11-CV-8525, 2012 WL 3776707, at *8 (S.D.N.Y. Aug.
29, 2012) (“[C]ourts are extremely reluctant . . . to find constitutional violations based on

temporary deprivations of personal hygiene and grooming items.” (citation omitted)); Taylor v.
Halladay, No. 09-CV-0385, 2010 WL 3120036, at *8 (N.D.N.Y. July 1, 2010), adopted by 2010
WL 3155730 (N.D.N.Y. Aug. 9, 2010) (finding that failure to allow plaintiff to possess personal
photographs did not violate the Eighth Amendment); Johnson v. Coughlin, No. 90-CV-1731, 1992
WL 6227, at *6 (S.D.N.Y. Jan. 3, 1992) (finding that denial of certain personal belongings and
books did not violate the Eighth Amendment);
Further, although the temporary deprivation of clothing may constitute an Eighth
Amendment violation under certain circumstances, it does not amount to one on these facts. See
Jean-Laurent v. Lawrence, No. 12-CV-1502, 2013 WL 1129813, at *6 (S.D.N.Y. Mar. 19, 2013)
(“Clothing is one of the necessities of civilized life, and while prisoners are not entitled to a daily

change of clothes, at some point the denial of clean clothes could be a deprivation of constitutional
magnitude.” (quoting Williams v. DeTella, No. 95-CV-6498, 1997 WL 603884, at *2 (N.D. Ill.
Sept. 23, 1997)). To amount to an Eighth Amendment violation, a plaintiff must allege that that
the clothing deprivation “posed a threat to his health and safety.” Trammell v. Keane, 338 F.3d
155, 165 (2d Cir. 2003). Plaintiff has not alleged such a threat here.
Second, Plaintiff does not allege that Gutwein “had a culpable state of mind” when he
ordered the confiscation of Plaintiff’s personal belongings. Abdur-Raheem v. Caffery, No. 13-CV-
6315, 2015 WL 667528, at *4 (S.D.N.Y. Feb. 17, 2015). Undoubtedly, Gutwein knew that the
imposed sanctions would cause Plaintiff some degree of discomfort. But the deprivation of certain
privileges, including Plaintiff’s possession and use of personal property, was merely a “normal
incident[]” of disciplinary confinement. Dixon, 224 F. Supp. 2d at 748. Allegations that Gutwein
imposed run-of-the-mill sanctions for Plaintiff’s violation of DOCCS’s drug policy, without more,
does not evince his intent to subject Plaintiff to “a substantial risk of serious harm.” Gunn, 2021

WL 1699949, at *9.
Accordingly, Plaintiff’s conditions of confinement claim against Gutwein is dismissed.
D. Plaintiff’s Fourth Claim for Relief: Procedural Due Process Violations (Fourteenth
Amendment)

Plaintiff also brings a Fourteenth Amendment procedural due process claim against
Gutwein and Rivera.13 “[T]o present a [procedural] due process claim, a plaintiff must establish
(1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as
a result of insufficient process.” Keesh, 2021 WL 639530, at *7 (internal citations and quotation
marks omitted, alternations in original). “A prisoner’s liberty interest is implicated by prison
disciplinary proceedings only if the discipline imposes ‘atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.’” Id. (quoting Sandin v. Conner, 515
U.S. 472, 484 (1995)). “Indeed, dismissal has been found appropriate where the period of
confinement in relation to disciplinary hearings is shorter than 101 days.” Id. (citing Washington
v. Afify, 681 F. App’x 43, 45 (2d Cir. 2017)); see also Barnes v. Storks, No. 95-CV-4891, 1996
WL 648956, at *3 (S.D.N.Y. Nov. 6, 1996) (no protected liberty interest in inmate’s twenty-one-

13 Although both Deegan and Dahl served as witnesses at Plaintiff’s disciplinary hearing, Plaintiff does not
explain how their roles in the hearing contributed to its alleged procedural defects. Accordingly, Plaintiff
fails to state Deegan and Dahl’s personal involvement in the alleged procedural due process violations. The
Fourteenth Amendment claim for relief against Deegan and Dahl is, therefore, dismissed. See Boley, 687
F. App’x at 41 (citing Wright, 21 F.3d at 501) (“To establish a § 1983 claim, a plaintiff must show the
defendants’ personal involvement in the alleged constitutional violation.”); see also Alfaro Motors, Inc.,
814 F.2d at 886 (quoting Black, 534 F.2d at 527-28) (failure to allege personal involvement renders a
“complaint ‘fatally defective’ on its face”).
day confinement in keeplock); Camacho v. Keane, No. 95-CV-0182, 1996 WL 204483, at *2
(S.D.N.Y. Apr. 25, 1996) (no protected liberty interest in inmate’s forty-day confinement in
keeplock); Schmelzer v. Norfleet, 903 F. Supp. 632, 634 (S.D.N.Y. 1995) (no protected liberty
interest in inmate’s eleven-day confinement in keeplock).

Here, Plaintiff received sixty days’ “keeplock” confinement. (Am. Compl. ¶ 35). This
sanction does not amount to the type of “atypical and significant hardship” that would implicate a
protected liberty interest. Sandin, 515 U.S. at 484; Walker v. Caban, No. 08-CV-3025, 2008 WL
4925204, at *11 (S.D.N.Y. Nov. 19, 2008), adopted by 2008 WL 5148794 (S.D.N.Y. Dec. 5, 2008)
(holding ninety days in solitary confinement did not implicate protected liberty interest). Nor does
Plaintiff’s ninety-day loss of certain privileges. (Am. Compl. ¶ 35); Sandin, 515 U.S. at 485
(holding that loss of commissary, recreation, package, and telephone privileges does not amount
to an atypical and significant deprivation); Boyd v. Doe #1, No. 18-CV-1333, 2019 WL 5287973,
at *12 (N.D.N.Y. Oct. 18, 2019) (holding that alleged deprivation of personal property and other
privileges for ninety days did not implicate protected liberty interest). Therefore, Plaintiff has

failed to establish that he possessed a liberty interest.
Even if the Court assumes that Plaintiff possessed a liberty interest, Gutwein afforded him
sufficient process. “Although a New York inmate has a due process right to call witnesses, that
right is not absolute.” Barnes v. Henderson, 628 F. Supp. 2d 407, 411 (W.D.N.Y. 2009) (internal
citation omitted). “Prison officials must have the necessary discretion to keep the hearing within
reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine
authority . . . .” Id. (internal quotations omitted); see also Scott v. Kelly, 962 F.2d 145, 146 (2d Cir.
1992) (“It is well settled that an official may refuse to call witnesses as long as the refusal is
justifiable.”). Further, “[t]he requirements of due process are satisfied if ‘some evidence’ supports
the conclusion of the disciplinary hearing.” Brooks v. Prack, 77 F. Supp. 3d 301, 315 (W.D.N.Y.
2014).
At the disciplinary hearing, Gutwein afforded Plaintiff the opportunity to cross-examine
the prosecuting witnesses against him (Deegan and Dahl). (Am. Compl. ¶¶ 27-30). Plaintiff was

also provided with several of the documents that he requested. (Id. ¶ 18). Further, Plaintiff had the
opportunity to question a representative of the company that manufactured the Indiko Plus
machine. (Id. ¶ 32). Gutwein denied Plaintiff certain witnesses and documents; but he was merely
exercising his “necessary discretion” in doing so. Barnes, 628 F. Supp. 2d at 411. And given
Plaintiff’s positive drug test and the witnesses’ testimony against him, there was certainly “some
evidence” to support Gutwein’s guilty determination. Brooks, 77 F. Supp. 3d at 315. Therefore,
Plaintiff’s disciplinary hearing was well within the Fourteenth Amendment’s guardrails.
Plaintiff also insists that Rivera’s attempt to adjourn Plaintiff’s disciplinary hearing
constituted a procedural due process violation. (Am. Compl. at 24, ¶ 34). The gist of the allegation
is that Rivera lied about Gutwein’s availability in requesting that Plaintiff’s hearing be adjourned

to November 9, 2019. (Id. at 24). But in any event, Plaintiff’s hearing occurred as scheduled on
November 7, 2019. (Id.). And even assuming arguendo that Plaintiff’s had a protected liberty
interest, which he did not, Plaintiff fails to articulate how an adjournment request that was denied
could have deprived him of sufficient process.
Accordingly, the procedural due process claims against Gutwein and Rivera are dismissed.
E. Plaintiff’s Fifth Claim for Relief: Retaliation (First Amendment)
“[T]o sustain a First Amendment retaliation claim, a prisoner must demonstrate the
following: (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 speech
and the adverse action.” Handle v. Alexander, No. 10-CV-9235, 2011 WL 1226228, at *2

(S.D.N.Y. Mar. 22, 2011) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)). An
action is “adverse” when it “would deter a similarly situated individual of ordinary firmness from
exercising his or her constitutional rights . . . .” Ruggiero v. Cty. of Orange, No. 19-CV-3632, 2020
WL 5096032, at *7 (S.D.N.Y. Aug. 28, 2020) (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir.
2003)). Conduct short of this standard is “simply de minimis and . . . outside the ambit of
constitutional protection.” Id. (quoting Davis, 320 F.3d at 353). Likewise, under the third element,
the “allegations must support an inference that the protected conduct was ‘a substantial or
motivating factor for the adverse actions taken by prison officials.’” Dorsey v. Fisher, 468 F.
App’x 25, 27 (2d Cir. 2012) (quoting Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003)). Bearing
in mind that “[c]ourts properly approach prisoner retaliation claims with skepticism and particular

care[ ] because virtually any adverse action taken against a prisoner by a prison official . . . can be
characterized as a constitutionally proscribed retaliatory act,” Davis, 320 F.3d at 352 (internal
quotation marks omitted), “[c]onclusory allegations will not suffice; instead, a prisoner’s claim for
retaliation must be supported by specific and detailed factual allegations.” Vogelfang v. Capra,
889 F. Supp. 2d 489, 517 (S.D.N.Y. 2012) (internal quotation marks omitted).
Plaintiff alleges that, in retaliation for filing a grievance against Rossy, all Defendants14
conspired to have Plaintiff’s urine tested for drugs, which resulted in allegedly flawed disciplinary
proceedings against him. (Am. Compl. at 22-25).15
Plaintiff undoubtedly engaged in protected conduct when he filed a grievance against

Rossy. See Davis, 320 F.3d at 352-53 (“[T]he filing of prison grievances is a constitutionally
protected activity.”). But it is a closer call whether being subjected to a single urine test constitutes
an adverse action. Compare Holmes v. Fischer, No. 09-CV-00829, 2016 WL 552962, at *10
(W.D.N.Y. Feb. 10, 2016) (“Insofar as urinalysis involves both embarrassment and potential
punishment, being required to submit to a urinalysis constitutes an adverse action.” (internal
quotation marks and citations omitted)), with Bumpus v. Canfield, 495 F. Supp. 2d 316, 327
(W.D.N.Y. 2007) (“Urine tests are a fact of prison life, and I do not find that one urine test would
chill a prisoner of ordinary firmness from filing grievances.” (internal citations omitted)), and
Fann v. Arnold, No. 14-CV-6187, 2016 WL 2858927, at *3 (W.D.N.Y. May 16, 2016) (“[T]he
fact that Plaintiff was subjected to a single urine test does not constitute an adverse action that

14 As Annucci, Royce, and Venettozzi are dismissed due to lack of personal involvement, see supra, §
I.A.1., the retaliation and conspiracy claims only apply to Rossy, Gutwein, Rivera, Deegan, and Dahl.

15 To the extent Plaintiff brings a § 1983 conspiracy claim, his “allegations do not provide a factual basis
to support a claim that Defendants engaged in a conspiracy.” Jackson, 2019 WL 6119010, at *11; see also
Ciambriello v. Cty. of Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (in the context of § 1983 conspiracy claim,
“complaints containing only conclusory, vague, or general allegations that the defendants have engaged in
a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and
expansive allegations are insufficient, unless amplified by specific instances of misconduct.” (internal
quotation marks omitted)). Moreover, “any factual allegations that Defendants conspired together are
legally insufficient, because the intracorporate immunity doctrine generally bars conspiracy claims against
employees of the same entity.” Ortiz v. Ledbetter, No. 19-CV-2493, 2020 WL 2614771, at *6 (S.D.N.Y.
May 22, 2020). “And there is no suggestion here that any exception to the doctrine applies.” Id. Lastly,
“because there was no underlying violation, the conspiracy claim must fail.” Jackson, 2019 WL 6119010,
at *11; Mitchell v. Cty. of Nassau, 786 F. Supp. 2d 545, 564 (E.D.N.Y. 2011) (“[A] § 1983 conspiracy
claim fails as a matter of law where there is no underlying constitutional violation.”). Accordingly,
Plaintiff’s conspiracy claim against Rossy, Gutwein, Rivera, Deegan, and Dahl is dismissed.
would deter an inmate from asserting his or her rights.”). The Court, however, need not and does
not wade into this debate.
Even assuming, arguendo, that a single urine test constitutes an adverse action, Plaintiff
fails to satisfy the third prong of the retaliation test. Namely, Plaintiff fails to allege “a causal

connection” between his grievance against Rossy and his subsequent urine test. Handle, 2011 WL
1226228, at *2. “To sufficiently allege a causal connection, [Plaintiff’s] allegations must support
an inference that the protected conduct was ‘a substantial or motivating factor for the adverse
actions taken by prison officials.’” Dorsey v. Fisher, 468 F. App’x 25, 27 (2d Cir. 2012) (quoting
Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003)). “Plaintiff need not provide direct evidence
of a retaliatory motive to support a retaliation claim.” Hammock v. Pierce, No. 15-CV-09052,
2018 WL 2108244, at *8 (S.D.N.Y. May 7, 2018) (citing Bennett v. Goord, 343 F.3d at 139).
“Rather a retaliatory motive may be inferred from a number of circumstantial factors, including,
inter alia, ‘(i) the temporal proximity between the protected activity and the alleged retaliatory act;
(ii) the inmate’s prior good disciplinary record; (iii) vindication at a hearing on the matter, and (iv)

statements by the defendant concerning his motivation.’” Id. (quoting Burton v. Lynch, 664 F.
Supp. 2d 349, 367 (S.D.N.Y. 2009) (internal quotation marks omitted)).
Here, Plaintiff filed a grievance against Rossy on September 10, 2019. (Am. Compl. ¶ 9).
Then, on October 11, 2019, Plaintiff was randomly selected for a urine test. (Id. ¶¶ 11-12).
Although “the passage of approximately one month between the protected activity and the
retaliation is a sufficiently short period of time,” Plaintiff’s allegations nonetheless fail to establish
a causal link. White v. Dep’t of Corr. Servs., 814 F. Supp. 2d 374, 390 (S.D.N.Y. 2011). Indeed,
Plaintiff alleges that he was randomly selected for urine testing, i.e., he was selected by a computer,
not Defendants. (Am. Compl. ¶¶ 12, 29). Further, Plaintiff does not allege that anyone other than
Rossy was aware of the grievance filed against her. See Mateo v. Dawn, No. 14-CV-2620, 2016
WL 5478431, at *8 (S.D.N.Y. Sept. 28, 2016) (finding no causation where plaintiff did not “allege
or otherwise suggest that Defendants even knew of the complaints filed against other correction
officers”); see also Jackson v. Prack, No. 16-CV-7561, 2019 WL 6119010, at *10 (S.D.N.Y. Nov.

18, 2019) (finding no causation where plaintiff did “not allege that either [d]efendant knew of the
grievance”). Therefore, Plaintiff fails to establish any plausible connection between Plaintiff’s
protected activity and his subsequent selection for urine testing.
Accordingly, Plaintiff’s retaliation claim against Rossy, Gutwein, Rivera, Deegan, and
Dahl is dismissed.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s
First, Third, Fourth, and Fifth Claims for Relief with prejudice, as any amendment would be futile.
See Reed v. Friedman Mgt. Corp., 541 F. App’x 40, 41 (2d Cir. 2013) (“District courts should
frequently provide leave to amend before dismissing a pro se complaint. However, leave to amend

is not necessary when it would be futile.” (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000))).
The Court GRANTS Defendants’ motion to dismiss Plaintiff’s Second Claim for Relief
without prejudice. Plaintiff may file a Second Amended Complaint, should he be so advised,
within 30 days from the date of this Order to address only the Second Claim for Relief pleading
deficiencies identified herein and for no other purpose. Plaintiff is reminded that if he chooses to
file a Second Amended Complaint, the Second Amended Complaint will completely replace, not
supplement, the original complaint. Therefore, any facts or claims that Plaintiff wishes to maintain
conceming the Second Claim for Relief and that were not herein dismissed with prejudice must be
included in the Second Amended Complaint.
The Clerk is instructed to terminate the motion sequence pending at Doc. 61 and to mail a
copy of this Memorandum Opinion and Order to Plaintiff.
SO ORDERED:
Dated: White Plains, New York 6 ‘
June 23, 2021
Philip M. Halpern
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10333051. Public record. Not legal advice.