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

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

URL: https://www.frixlaw.com/law-library/cases/10333841

## Case

- **Court:** District Court, S.D. New York
- **Decided:** July 29, 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/10333841

## How later opinions describe it (automated extraction)

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

## Opinion text

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:
“Chart
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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10333841. Public record. Not legal advice.