Thomas v. N.Y. Department of Corrections Community Supervision

MEMORANDUM ENDORSEMENT USDC SDNY

Thomas vy. C.O. S. Matesic, et al., DOCUMENT

ELECTRONICALLY FILED

7:20-cv-09709-NSR DOC #:

DATE FILED: __7/99/202]

The Court received Plaintiff's attached “Affidavit in Support for Entry of Default Judgment.”

The Court granted Defendants Hurley Hopkins, Heriberto Nieves, Simun Matesic, and Nichols

Drewes’ request for leave to file a motion to dismiss with the following schedule: moving papers

shall be served (not filed) on September 8, 2021; opposition papers shall be served (not filed) on

October 8, 2021; reply papers shall be served on October 25, 2021. (ECF No. 26.) The Court also

granted Defendant Norfleet an extension to respond to the Complaint and he must do so on or

before August 23, 2021. (ECF No. 23.) Both orders are also attached here.

Accordingly, Plaintiff's application is denied as moot at this time.

The Clerk of Court is directed to terminate the motion at ECF No. 27 and to mail a copy of this

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memorandum endorsement to pro se Plaintiff at the address on ECF and to show service on the

docket.

Dated: July 29, 2021 ORDERED: _

White Plains, NY cee >

IN-NELSON ROMAN

UNITED STATES DISTRICT JUDGE

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Steven B. Thomas Ret LE

Plaintiff,

: AFFIDAVIT IN SUPPORT

FOR ENTRY OF DEFAULT

-V = :

20-Civ-9709 (NSR)

N.Y. D.O.C.C.S, H. Hopkins, $. Matesic,

H. Nieves, B. Northfleet, N. Drews :

Defendants,

I, Steven B. Thomas, Din# 13-A-3947, being duly sworn deposes and says: I am

the plaintiff in the above action.

1. On November 17" 2020 plaintiff commenced federal complaint against

defendants N. Drews, H. Hopkins, S. Matesic, H. Nieves, and B. Northfleet of

D.O.C.C.S.

2. On March 25™ 2021 service was executed and all defendants was served with

plaintiffs complaint. Defendants due date to respond with an answer was May 24"

2021.

3. On May 13", 2021 an interested party in representing defendants at the N.Y.

Office of Attorney General, Ian Ramage requested an extension to respond to

plaintiffs complaint until June 23" 2021, in which this court granted.

4. On June 21* 2021 the interested party at the N.Y. Office of Attorney General

representing the defendants requested another extension to respond to plaintiffs

complaint until July 21‘, 2021, which this court granted as a final extension.

5. As of this date defendant has not responded to plaintiffs’ complaint nor has there

been a notice of appearance submitted on the defendants’ behalf as to who

officially represents them.

6. The defendants has had approximately four (4) months to answer plaintiffs

complaint and now seeks a third (3) extension due to Attorney General office

inability to locate defendant B. Northfleet.

USDC SDNY

DOCUMENT

ELECTRONICALLY FILED

1 NOC #:

7. A third (3) extension would be prejudicial to the plaintiff and gives the Attorney

General office a stay of Civil Litigation until said defendants are found.

8. Defendants have not contacted or attempted to contact plaintiff in this matter

during the four (4) months to seek consent in good faith.

9. Defendants have not complied with the extension of time given them by this

court, defendant disregard to the court order show a lack of interest in this most

important matter.

10. Plaintiff request that the clerk of the court make an entry of default noting that

defendants failed to answer timely after multiple extensions granted by the court.

Dated: July 23, 2021

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DOCUMENT

ELECTRONICALLY FILED

MEMORANDUM ENDORSEMENT

DATE FILED: 7/27/2021

Thomas v. N.Y. Department of Corrections Community Supervision et al.,

Q 20 CV 9709 (NSR)

tf) ‘The Court has received Defendants’ letter motion for leave to file a motion to dismiss the

Ce complaint (ECF No. 25.) Pro se Plaintiff did not file a response.

The Court waives the pre-motion conference requirement and grants Defendants leave to file

their motion to dismiss as follows: moving papers shall be served (not filed) on September 8,

tr 2021; opposition papers shall be served (not filed) on October 8, 2021; all reply papers shall be

served on October 25, 2021.

= Defendants shall file all motion papers—including any opposition papers—on the reply date,

October 25, 2021. Defendants shall provide two hard courtesy copies of all motion papers to

S chambers as they are served.

The Clerk of Court is directed to terminate the motion at ECF No. 25, mail a copy of this

memorandum endorsement to pro se Plaintiff at the address on ECF, and show service on the

docket.

Dated: July 27, 2021 SO ORDERED: _—

White Plains, NY cee >

N-NECSON.S. ROMAN

UNITED STATES DISTRICT JUDGE

\ gras:

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STATE OF NEW YORK

OFFICE OF THE ATTORNEY GENERAL

LETITIA JAMES DIVISION OF STATE COUNSEL

ATTORNEY GENERAL LITIGATION BUREAU

Writer’s Direct Dial: (212) 416-8659

July 21, 2021

VIA ECF

Honorable Nelson S. Roman

United States District Court

Southern District of New York

300 Quarropas Street

White Plains, NY 10601

Re: Thomas v. DOCCS, 20 Civ. 9709 (NSR)

Dear Judge Roman:

This Office represents Defendants Hurley Hopkins, Heriberto Nieves, Simun Matesic, and

Nichols Drewes (“Defendants”), employees of the New York State Department of Corrections and

Community Supervision (“DOCCS”), in the above-referenced action. I write to respectfully

request a pre-motion conference regarding Defendants’ proposed motion to dismiss.

Defendants seek dismissal of the Complaint pursuant to Federal Rule of Civil Procedure

12(b)(1) and 12(b)(6), and 42 U.S.C. § 1997(e)(e) on grounds that: (1) Plaintiff fails to allege a

medical indifference claim; (2) Plaintiff fails to allege a substantive due process claim; (3)

Defendant Drewes was not personally involved; (4) Defendants are entitled to qualified immunity;

(5) Claims against Defendants in their official capacity are barred by the Eleventh Amendment;

and (6) Plaintiffs claims for emotional distress damages are barred by 42 U.S.C. § 1997(e)(e).

Point I; Plaintiff Fails to Establish a Deliberate Indifference Claim Against Defendants

In order to assert an Eighth Amendment claim for medical indifference, a plaintiff must

establish that a defendant acted with “deliberate indifference to a substantial risk of serious harm.”

Farmer yv. Brennan, 511 U.S. 825, 828 (1994). A deliberate indifference claim includes 1) an

objective test, and 2) a subjective test. Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).

28 LIBERTY STREET, NEW YorK, NY 10005 @ PHONE (212) 416-8610 @ Fax (212) 416-6075 * Not FoR SERVICE OF PAPERS

WWW.AG.NY.GOV

Here, Plaintiff fails to plead facts sufficient to show he suffered from a sufficiently serious

medical condition, or that any Defendants were deliberately indifferent to such a condition. While

hemophilia could arguably constitute a serious medical condition, Plaintiff does not allege any

denial of treatment, only the most trivial delays. (Dkt. No. 2, pp. 5, 6, 14). These trivial incidents

were not objectively serious delays in treatment, and did not worsen Plaintiff’s medical condition,

so are not actionable under the Eighth Amendment. Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir.

2003). Accordingly, the medical indifference claims should be dismissed.

Point II: Plaintiff Fails to Allege a Substantive Due Process Claim

Plaintiff fails to plead a violation of his medical privacy. Plaintiff alleges that Defendants

violated his medical privacy in that Defendant Hopkins asked questions of Plaintiff’s nurse such

as “how long does this medicine take to administer?” and “how long does it take to recover?” (Dkt

No. 2, p. 5); that Defendant Hopkins later disclosed Plaintiff’s condition to other inmates (Dkt No.

2, p. 6); and that Defendants Matesic, Nieves, and Drewes inadvertently disclosed Plaintiff’s

medical condition by talking amongst themselves and fellow staff members (Dkt No. 2, p. 6).

These actions were, at most, minimal intrusions into Plaintiff’s medical privacy, and are supported

by both legitimate penological and obvious medical reasons.

Each of the alleged acts by Defendants was reasonably related to legitimate penological

interests and, at most, were minimally intrusive. Plaintiff suffers from a severe bleeding disorder

that could require immediate medical treatment. (Dkt. No. 2, p. 5). The questions attributed to

Defendant Hopkins were directed towards medical professionals and are not even alleged to have

been arbitrary or malicious. (Dkt No. 2, p. 5). Additionally, there are valid, and indeed compelling

reasons why correction officers, who are tasked with prisoner safety, should be aware of an

inmate’s medical condition that may require emergency treatment. Accordingly, Plaintiff’s

substantive due process claims must fail.

Point III: Defendant Drewes is Not Alleged to Have Been Personally Involved

Plaintiff’s Complaint is a veritable hodgepodge of conclusory statements but allege no

factual allegations against Defendant Drewes that could serve as the basis for liability under

Section 1983. “[A] plaintiff must plead that each Government-official defendant, through the

official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662,

676 (2009). Accord Tangretti v. Bachmann, 983 F.3d 609, 619 (2d Cir. 2020) (holding that the

Circuit’s prior five-factor test for supervisory liability under Colon was no longer good law after

Iqbal).

Here, the Complaint contains no non-conclusory allegations against Defendant Drewes.

(Dkt No. 2, pp. 5-6). The Complaint contains no allegations from which it can be reasonably

inferred that Defendant was personally involved in a purported violation of Plaintiff’s

constitutional rights. Moreover, it appears Defendant Drewes is named and sued here simply

because he was in the prison chain of command. “[M]ere linkage in the prison chain of command

is insufficient to implicate a [senior prison official] in a § 1983 claim.” Richardson v. Goord, 347

28 LIBERTY STREET, NEW YORK, NY 10005 ● PHONE (212) 416-8610 ● FAX (212) 416-6075 * NOT FOR SERVICE OF PAPERS

. . .

F.3d 431, 435 (2d Cir. 2003). Accordingly, the claims against Defendant Drewes should be

dismissed.

Point IV: Defendants Are Entitled to Qualified Immunity

Defendants are also entitled to qualified immunity. “[G]overnment officials performing

discretionary functions generally are granted a qualified immunity and are ‘shielded from liability

for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Wilson v. Layne, 526 U.S.

603, 609 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Because the allegations

are insufficient to allege that Defendants violated any federal rights of Plaintiff, they necessarily

fail to allege that he violated a federal right that was “clearly established” at the time of the incident.

Spavone v. New York State Dep’t of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013) (defendant is

entitled to qualified immunity if it is not alleged he was personally involved in a constitutional

violation).

Point V: Official Capacity Claims are Barred by the Eleventh Amendment

Plaintiff bring claims against Defendants in their official capacity. Claims asserted against

Defendants for damages in their official capacity are considered claims against the State itself, and

thus, barred by the Eleventh Amendment and sovereign immunity. See Kentucky v. Graham, 473

U.S. 159, 169 (1985). Accordingly, Plaintiff’s claims against Defendants in their official capacity

must be dismissed for lack of subject matter jurisdiction.

Point VI: Plaintiff’s Claims For Damages Should Be Dismissed

42 U.S.C. § 1997(e)(e) bars a prisoner from bringing an action in federal court seeking

recovery for mental or emotional injuries without a prior showing of physical injury. See

Thompson v. Carter, 284 F.3d 411, 416, 419 (2d Cir. 2002). Here, Plaintiff alleges no physical

injuries, only various emotional injuries including “ridicule,” and general “pain.” (Dkt No. 2, p.

7). As such, Plaintiff’s claims for damages for emotional distress are barred.

We thank the Court for its attention to this matter.

Respectfully submitted,

/s/ Ian Ramage

Ian Ramage

Assistant Attorney General

Ian.Ramage@ag.ny.gov

cc: Steven Thomas, DIN 13A3947

Woodbourne Correctional Facility

99 Prison Road, PO Box 100

Woodbourne, NY 12788-1000

28 LIBERTY STREET, NEW YORK, NY 10005 ● PHONE (212) 416-8610 ● FAX (212) 416-6075 * NOT FOR SERVICE OF PAPERS

. . .

aw USDC SDNY

1D. , Cl Os. DOCUMENT

ee ELECTRONICALLY FILED

i: Meage Lf DOC #:

DATE FILED: 7/20/2021

STATE OF NEW YORK

OFFICE OF THE ATTORNEY GENERAL

LETITIA JAMES DIVISION OF STATE COUNSEL

ATTORNEY GENERAL LITIGATION BUREAU

Writer’s Direct Dial: (212) 416-8659

July 19, 2021

war Nel S Romé Defendant Norfleet's time to respond 1s extended to August 2

United S Dict : Tades.. 2021. FINAL EXTENSION.

alates Se ee The Clerk of Court is directed to terminate the motion at EC]

Southern District of New York . . □

22 and to mail a copy of this endorsement to pro se Plainitiff

300 Quarropas Street .

White Plains. New York 10601 address on ECF and to show service on the docket.

□ Dated: July 20, 2021 SO ORDERED: □□□

Re: Thomas v. DOCCS, 20 CV 9709 (NSR) White Plains, NY

fr a □□ □□□ i

“NELSONS. ROMAN

Judge Roman: UNITED STATES DISTRICT JUDG

This Office represents Defendants Hurley Hopkins, Heriberto Nieves, Simun Matesic,

and Nichols Drewes, and we will be filing a premotion letter on these Defendants’ behalf on July

21, 2021. We have also received a request for representation from Defendant Barry Norfleet,

who is retired from DOCCS service, but, despite Herculean efforts, both this Office and DOCCS

have been almost completely unable to contact him thereafter. Until we are able to communicate

with Defendant Norfleet, we cannot undertake his representation or appear on his behalf. Thus,

although the Court has stated that its previous grant of the second extension request was

“FINAL,” (Docket No. 21), we respectfully request, pursuant to our obligations under New York

Public Officer’s Law § 17 to attempt to protect State defendants against default, that Defendant

Norfleet, and on/y Defendant Norfleet, have his time to respond to Plaintiff's Complaint be

extended by thirty (30) days from July 21, 2021 to August 23, 2021.

Two prior requests for an extension of time for all Defendants to respond to Plaintiff's

Complaint were granted. (Dkt. Nos. 19, 21). Plaintiff's consent has not been sought because of

the difficulty in prompt communications with pro se inmates and the need to make this request

forthwith. We apologize for the necessity of this request and thank the Court for its attention to

this matter.

Respectfully submitted,

28 Liberty Street, New York, New York 10005 @ Tel.: (212) 416-8610 @ Fax: (212) 416-6075 (Not For Service of Papers)

http://www.ag.ny.gov

/s/ Ian Ramage

Ian Ramage

Assistant Attorney General

(212) 416-8659

Ian.Ramage@ag.ny.gov

cc: Steven B. Thomas, DIN 13-A-3947

Woodbourne Correctional Facility

99 Prison Road

PO Box 1000

Woodbourne, NY 12788-1000

(via mail)

28 Liberty Street, New York, New York 10005 ● Tel.: (212) 416-8610 ● Fax: (212) 416-6075 (Not For Service of Papers)