Price v. Koenigsmann

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

TYRONE PRICE,

Plaintiff,

No. 19-CV-4068 (KMK)

v.

OPINION & ORDER

DR. CARL KOENIGSMANN, et al.,

Defendants.

Tyrone Price

E. Elmhurst, NY

Pro Se Plaintiff

Kathryn Martin, Esq.

Office of the New York State Attorney General

White Plains, NY

Counsel for Defendants

KENNETH M. KARAS, United States District Judge:

Tyrone Price (“Plaintiff”), proceeding pro se, brings this Action, pursuant to 42 U.S.C.

§ 1983, against Dr. Carl Koenigsmann, Dr. Robert Bentivegna, and Thomas Griffin

(“Defendants”), alleging that they violated Plaintiff’s Eighth and Fourteenth Amendment rights

by failing to properly care for a finger injury sustained while Plaintiff was incarcerated at Green

Haven Correctional Facility (“Green Haven”). (See Am. Compl. (Dkt. No. 41).) Before the

Court is Defendants’ Motion To Dismiss the Amended Complaint (the “Motion”), filed pursuant

to Federal Rule of Civil Procedure 12(b)(6). (See Not. of Mot. (Dkt. No. 46).) For the foregoing

reasons, the Motion is granted.

I. Background

A. Factual Background

The following facts are drawn from Plaintiff’s Amended Complaint and the exhibits

attached thereto and are assumed to be true for the purpose of resolving the instant Motion. See

Sierra Club v. Con-Strux, LLC, 911 F.3d 85, 88 (2d Cir. 2018) (“A complaint is . . . deemed to

include[,] [inter alia,] any written instrument attached to it as an exhibit.” (quotation marks

omitted)).1

Plaintiff alleges that, in November 2016, he suffered an injury to his ring finger while

playing basketball. (Am. Compl. 11.)2 Plaintiff initially did not seek medical attention for the

injury, because he “thought it was jammed,” (id. at 35), but wrote to the “Medical Department”

on December 1, December 7, and December 16, 2016 to request treatment, (id. at 18, 19, 20).

Plaintiff was seen during sick call on December 16, 2016, and an x-ray of his finger was

requested; the x-ray was performed on January 6, 2017 and revealed that there was a

“dislocation” and “[s]oft tissue swelling,” but no fracture. (Id. at 35, 36.) The radiologist

recommended a follow-up appointment with a specialist “to exclude small avulsion fracture.”

(Id. at 36 (capitalization omitted).) Plaintiff wrote to the “Medical Department” again on

January 9, 2017, seeking further medical attention. (Id. at 21.) On January 17, 2017, a referral

1 Defendants rightfully point out that “[i]t is unclear which document is the Amended

Complaint” given this Action’s procedural history, see infra, and explain that Defendants have

assumed the document filed at Dkt. No. 41 is the Amended Complaint because it contains the

longest and most detailed allegations. (Defs.’ Mem. of Law in Supp. of Mot. to Dismiss the Am.

Compl. 1 n.1 (Dkt. No. 47).) The various documents filed by Plaintiff are substantively identical

and the document filed at Dkt. No. 41 does contain the longest and most detailed allegations.

(Compare Dkt. No. 41 with Dkt. Nos. 32, 33, 35, 36, 39.) As such, the Court agrees with

Defendants and identifies the document filed at Dkt. No. 41 as the Amended Complaint.

2 When citing to the Amended Complaint, the Court refers to the ECF-stamped page

numbers at the top-right hand corner of each page.

was made for a consult with an orthopedic surgeon. (Id. at 39.) It appears that a provider at

Green Haven attempted to examine Plaintiff on January 18, 2017, but was unable to do so “due

to security reasons,” so Plaintiff was examined on January 19, 2017 instead—the same day that

Plaintiff submitted another request to the “Medical Department” for medical attention. (Id. at 22,

37.) Plaintiff had his consultation with the orthopedic surgeon on February 14, 2017, and was

examined again by a Green Haven provider after he returned on February 16, 2017. (Id. at 37,

39–40.)

Plaintiff submitted yet another request to the “Medical Department” on March 24, 2017,

writing that he “was told in Feb [he] would be taken to fix [his] finger, [h]owever its April [sic]

[and he] still ha[d]n’t been taken.” (Id. at 23 (underlining in original).) On April 17, 2017,

Plaintiff filed a grievance regarding his lack of care, in which he repeated his complaint that he

was “suppose[d] to have [his] finger taken care of in Feb, however, it[’]s April & [it] still [has]

not been taken care of” and requested “[t]o please see someone to help with finger to stop the

pain.” (Id. at 25–27.) On May 8, 2017, Plaintiff received a response from the Inmate Grievance

Resolution Committee (“IGRC”) which recommended that “grievant be given proper medical

attention.” (Id. at 28.)

On April 18, 2017, pre-operating testing was ordered for Plaintiff’s hand surgery, which

was performed at an outside hospital on May 10, 2017. (Id. at 41, 42–44.) Plaintiff had a

follow-up appointment with the orthopedic surgeon on May 25, 2017 to remove his stitches, and

an additional x-ray was ordered on May 26, 2017; Plaintiff was also again referred to the

orthopedic surgeon for a follow-up appointment. (Id. at 45–46, 48.) Plaintiff was seen at sick

call on May 31, 2017 to change the dressing on his hand before the x-ray was performed on

June 6, 2017. (Id. at 46, 47.) Meanwhile, Plaintiff received a response from the Inmate

Grievance Program (“IGP”) on June 2, 2017 which stated that a “Dr. K” had submitted a request

for “surgical repair” of Plaintiff’s hand and that the surgery had been scheduled; Plaintiff

appealed this determination on June 7, 2017, explaining that he “wasn’t sent for surgical repair

as [he] was scheduled to go, which in return kept [him] in pain & thus [his] finger would never

be the same.” (Id. at 29.)

Plaintiff was seen at sick call again on June 12, 2017 to change the dressing on his hand

once more, and was seen by the orthopedic surgeon on July 6, 2017, who approved physical

therapy three times per week for four weeks. (Id. at 47, 48, 50.) Plaintiff received physical

therapy on thirteen occasions between July 11 and August 11, 2017, (id. at 51–52); it appears

that he refused one of his planned trips to the hand clinic, on August 3, 2017, because he was

receiving a visit, (id. at 49). Plaintiff was seen for another follow-up appointment with the

orthopedic surgeon on October 26, 2017, who reduced his physical therapy to twice a week for

six weeks and scheduled an additional follow-up appointment in two months. (Id. at 53.)

Plaintiff received physical therapy on eleven occasions between November 13, 2017 and

January 4, 2018. (Id. at 52.) Plaintiff had what appears to have been his final follow-up with the

orthopedic surgeon—at least based on the records Plaintiff attached to the Amended

Complaint—on January 11, 2018.3 (Id. at 56.)

On October 31, 2018, following a hearing, the Central Office Review Committee

(“CORC”) issued a decision on Plaintiff’s grievance appeal, in which CORC unanimously

agreed to close the appeal. (Id. at 31.) CORC wrote that Plaintiff’s complaints had been

satisfied by seeing an orthopedist six times between February 16, 2017 and January 11, 2018 for

3 While the records from this visit are difficult to read, they may indicate that Plaintiff

was to have another follow-up appointment in 8 weeks. (See Am. Compl. 56.) If such a follow-

up appointment occurred Plaintiff has not provided the records from it.

finger pain, by undergoing surgery on May 10, 2017, and completing two regimens of physical

therapy. (Id.)

Plaintiff claims that because he was not scheduled for surgery until “165 days after his

injury,” he “has lost the full mobility of his finger, which will affect his future earning ability,

among other things.” (Id. at 3–4.) Based on the foregoing, Plaintiff raises claims for “medical

malpractice” and “medical negligence,” in addition to claims under the Eighth Amendment for

deliberate indifference to medical needs and under the Fourteenth Amendment for “lack of Equal

Protection,” arguing that he would have been afforded better medical care had he been a civilian

or a Green Haven employee. (Id. at 3–5, 6.) Liberally construed, Plaintiff also appears to

include a claim for denial of access to the law library, arguing that while he has been detained at

Rikers Island during the COVID-19 pandemic, the New York Department of Corrections and

Community Supervision (“DOCCS”) “closed down all law library areas.” (Id. at 5.)

B. Procedural History

Plaintiff filed his original Complaint on May 6, 2019. (See Compl. (Dkt. No. 1).)

Plaintiff’s request to proceed in forma pauperis was granted on August 2, 2019. (See Dkt.

No. 6.) Following a pre-motion letter from Defendants, the Court set a briefing schedule on

Defendants’ Motion to Dismiss the Complaint. (See Dkt. No. 21.) Defendants filed their

opening papers on January 7, 2020. (See Dkt. Nos. 22, 23.) Plaintiff filed his Opposition on

February 7, 2020. (See Dkt. No. 24.) Defendants filed their Reply on February 27, 2020. (See

Dkt. No. 25.) The Court issued an Opinion & Order on July 24, 2020 (“July Opinion”),

dismissing Plaintiff’s claims without prejudice and ordering Plaintiff to file an amended

complaint addressing the identified deficiencies within 30 days. (See Op. & Order (“July Op.”)

(Dkt. No. 26).)

Plaintiff failed to amend his Complaint within 30 days, so on September 10, 2020, the

Court issued an Order to Show Cause, ordering Plaintiff to show cause by no later than

October 13, 2020 as to why the case should not be dismissed for failure to prosecute. (See Dkt.

No. 27.) Plaintiff failed to respond, so the Court dismissed the Action without prejudice on

October 19, 2020 for failure to prosecute. (See Dkt. No. 28.) The Court received a letter from

Plaintiff on October 27, 2020, in which Plaintiff explained that he had been transferred to Rikers

Island and lost important legal papers, and did not have access to the law library due to the

COVID-19 pandemic. (See Dkt. No. 29.) As such, Plaintiff requested an additional 60 days in

which to file an amended complaint. (See id.) The Court granted Plaintiff an additional 30 days

to file the Complaint on October 29, 2020, (see Dkt. No. 33), and on November 25, 2020,

Plaintiff filed a letter purporting to request that Plaintiff be permitted to amend his Complaint,

(see Dkt. No. 32), which was followed by a substantively identical “Motion to Amend” on

December 22, 2020, (see Dkt. No. 33). On December 29, 2020, the Court granted Plaintiff’s

“Motion to Amend” and ordered Plaintiff to file his amended complaint by February 12, 2021.

(See Dkt. No. 34.)

Plaintiff filed two additional letters on February 5 and 17, 2021 in which Plaintiff again

sought leave to amend his complaint. (See Dkt. Nos. 35, 36.) The Court again granted this

request and ordered Plaintiff to file his amended complaint by March 17, 2021. (See Dkt.

No. 37.) On March 9, 2021, Defendants filed a pre-motion letter regarding their anticipated

motion to dismiss Plaintiff’s amended complaint, which Defendants identified as one of

Plaintiff’s letters. (See Dkt. No. 38.) On March 15 and 16, 2021, the Court received two further

letters in which Plaintiff sought to amend his complaint. (See Dkt. Nos. 39, 41.) On March 17,

2021, the Court set a briefing schedule for Defendants’ motion to dismiss the amended complaint

and directed Defendants to address Plaintiff’s recent submission. (See Dkt. No. 40.) After

receiving an extension of that schedule, Defendants filed the instant Motion on June 2, 2021.

(See Not. of Mot.; Defs.’ Mem. of Law in Supp. of Mot. To Dismiss the Am. Compl. (“Defs.’

Mem.”) (Dkt. No. 47); Aff. of Service (Dkt. No. 48).) To date, Plaintiff has failed to respond to

Defendants’ Motion; the Motion is hereby deemed fully submitted.

II. Discussion

A. Standard of Review

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

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

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

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

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

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

v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked assertions

devoid of further factual enhancement.” Id. (alteration and quotation marks omitted). Rather, a

complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be

supported by showing any set of facts consistent with the allegations in the complaint,” id. at

563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its

face,” id. at 570, if a plaintiff has not “nudged [his] claim[] across the line from conceivable to

plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679 (“Determining

whether a complaint states a plausible claim for relief will . . . be a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense. But where

the well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to

relief.’” (second alteration in original) (citation omitted) (quoting FED. R. CIV. P. 8(a)(2))); id. at

678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading

regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with

nothing more than conclusions.”).

“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the

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

curiam), and “draw all reasonable inferences in the plaintiff’s favor,” Div. 1181 Amalgamated

Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep’t of Educ., 9 F.4th 91, 95 (2d Cir. 2021)

(per curiam) (citation omitted). Additionally, “when ruling on Rule 12(b)(6) motions to

dismiss,” district courts are directed to confine their consideration to “the complaint in its

entirety, . . . documents incorporated into the complaint by reference, and matters of which a

court may take judicial notice.” Bellin v. Zucker, 6 F.4th 463, 473 (2d Cir. 2021) (quotation

marks omitted); see also Dashnau v. Unilever Mfg. (US), Inc., 529 F. Supp. 3d 235, 240

(S.D.N.Y. Mar. 26, 2021) (same). “However, when the complaint is drafted by a pro se plaintiff,

the Court may [also] consider materials outside the complaint to the extent that they are

consistent with the allegations in the complaint.” Rivera v. Westchester County, 483 F. Supp. 3d

70, 76 (S.D.N.Y. 2020) (quotation marks omitted).

Finally, the Court must construe a “pro se complaint liberally to raise the strongest

arguments that it suggests.” Costabile v. N.Y.C. Health & Hosps. Corp., 951 F.3d 77, 80 (2d Cir.

2020) (italics omitted). “Nonetheless, a pro se complaint must state a plausible claim for relief,”

Darby v. Greenman, 14 F.4th 124, 125 (2d Cir. 2021) (italics and citation omitted), and “the

liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with

relevant rules of procedural and substantive law,” Bell v. Jendell, 980 F. Supp. 2d 555, 559

(S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601,

605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding

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

B. Analysis

Defendants argue primarily that “[t]he Amended Complaint should be dismissed pursuant

to the law of the case doctrine because it re-alleges the same claims on the same dates against the

same defendants utilizing near identical allegations,” and it was previously determined by this

Court that these allegations were insufficient to state a claim. (Defs.’ Mem. 4–7.) In the

alternative, Defendants argue that: (1) Plaintiff has failed to allege any sufficient facts to

establish that Defendants were personally involved in the alleged Eighth Amendment violations

to establish individual § 1983 liability, (id. at 7–8); (2) Plaintiff has failed to adequately state a

claim for deliberate indifference to medical needs because Plaintiff can neither establish that his

dislocated ring finger constituted a sufficiently serious medical condition nor that Defendants

acted with the required deliberate and willful disregard for his medical needs, (id. at 8–15);

(3) Plaintiff fails to state a cognizable Equal Protection claim because prisoners are not a

protected class and his claim cannot survive rational basis review, (id. at 15), (4) Defendants are

entitled to qualified immunity, (id. at 16–17), and (5) the Court lacks subject matter jurisdiction

over Plaintiff’s state law claims, (id. at 18).

The Court will address these arguments to the extent necessary to decide the Motion.

1. Personal Liability

As the Court explained in the July Opinion, “[i]t is well settled that, in order to establish a

defendant’s individual liability in a suit brought under [42 U.S.C.] § 1983, a plaintiff must

show . . . the defendant’s personal involvement in the alleged constitutional deprivation.” (July

Op. 7 (quoting Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)).) To establish

“personal involvement,” a plaintiff must plausibly allege that the defendant’s actions fall into one

of the following five categories:

(1) the defendant participated directly in the alleged constitutional violation, (2) the

defendant, after being informed of the violation through a report or appeal, failed

to remedy the wrong, (3) the defendant created a policy or custom under which

unconstitutional practices occurred, or allowed the continuance of such a policy or

custom, (4) the defendant was grossly negligent in supervising subordinates who

committed the wrongful acts, or (5) the defendant exhibited deliberate indifference

to the rights of inmates by failing to act on information indicating that

unconstitutional acts were occurring.

(Id. (quoting Grullon, 720 F.3d at 139).) “In other words, ‘[b]ecause vicarious liability is

inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant,

through the official’s own individual actions, has violated the Constitution.’” (Id. (alteration in

original) (quoting Iqbal, 556 U.S. at 676).)

The Court finds that Plaintiff has failed to cure the deficiencies identified in the original

Complaint, and the Amended Complaint too fails to allege how any named Defendant was

involved in the incidents underlying his claims. Plaintiff’s Amended Complaint contains seven

handwritten pages, (see Am. Compl. 1–7), and otherwise simply attaches the original Complaint

and its exhibits, (see id. at 9–60). The Court has already explained why the allegations in the

original Complaint are insufficient to establish the Defendants’ personal involvement for

purposes of individual § 1983 liability, (see July Op. 8–10), and the seven pages that Plaintiff has

added do not change this conclusion. First, none of the Defendant’s names appears in these

pages outside of the caption, (see Am. Compl. 1–7), which, as the Court explained in the July

Opinion, is grounds for dismissal, (see July Op. 8 (“Failing to name a defendant outside the

caption of the complaint is grounds for dismissal.” (collecting cases))). Moreover, the only

factual allegations Plaintiff makes that reference “Defendants” are vague and conclusory. (See

Am. Compl. 4 (“Affixed are Exhibits ‘1’ through ‘5’, which serves [sic] to attest that the

Defendants chose to be deliberately indifference [sic] to this Plaintiff[’]s medical needs, leaving

the end results irreversible.”); id. (“Thus Plaintiff kept requesting medical attention from medical

staff, medical staff along with the named [sic] as the ‘Defendant(s)’ were dilatory in getting the

Plaintiff the treatment neccessary [sic] to prevent the permentant [sic] damage to his finger, that

was injured in the facilit[y] gym.”).) These allegations—which are also largely identical to

portions of the original Complaint, (e.g., compare Am. Compl. 5–6 with Compl. 3–4)—are

insufficient to save Plaintiff’s Amended Complaint from dismissal. See Darby v. Greenman, 14

F.4th 124, 131 (2d Cir. 2021) (“Even for pro se pleadings, [v]ague and conclusory allegations of

official participation in civil rights violations are not sufficient to withstand a motion to dismiss.”

(alteration in original) (quotation marks and italics omitted)).4

2. Failure to State a Claim

Even assuming arguendo that Defendants’ personal involvement was plausibly alleged,

Plaintiff’s Amended Complaint nevertheless fails because he did not adequately state a claim for

either deliberate indifference to medical needs under the Eighth Amendment or for denial of

equal protection under the Fourteenth Amendment.

a. Deliberate Indifference to Medical Needs

As the Court explained in the July Opinion, “[t]he Eighth Amendment forbids deliberate

indifference to serious medical needs of prisoners.” (July Op. 10 (quoting Spavone v. N.Y. State

4 To the extent Plaintiff seeks to bring these claims against Defendants in their official

capacities, these claims are precluded by the Eleventh Amendment. See Severino v. Negron, 996

F.2d 1439, 1441 (2d Cir. 1993) (“[I]t is clear that the Eleventh Amendment does not permit

suit[s] [under § 1983] for money damages against state officials in their official capacities.”);

Gunn v. Bentivegna, No. 20-CV-2440, 2020 WL 2571015, at *3 (S.D.N.Y. May 19, 2020)

(“DOCCS officials enjoy Eleventh Amendment immunity from suit under § 1983 in their official

capacities.”).

Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)).) “To state a deliberate indifference

claim, an inmate must plausibly allege (1) ‘that he suffered a sufficiently serious constitutional

deprivation,’ and (2) that the defendants ‘acted with deliberate indifference.’” (Id. at 11 (quoting

Feliciano v. Anderson, No. 15-CV-4106, 2017 WL 1189747, at *8 (S.D.N.Y. Mar. 30, 2017)).)

“The first element is ‘objective’ and requires the plaintiff to show that ‘the alleged deprivation of

adequate medical care [is] sufficiently serious.’” (Id. (alteration in original) (quoting Spavone,

719 F.3d at 138).) This, in turn, involves two inquiries: (1) “whether the prisoner was actually

deprived of adequate medical care,” and (2) “whether the inadequacy in medical care is

sufficiently serious.” (Id. (quoting Salahuddin v. Goord, 467 F.3d 263, 279–80 (2d Cir. 2006)).)

In evaluating an inmate’s medical condition, the Second Circuit has instructed district courts to

consider the following non-exhaustive factors: “(1) whether a reasonable doctor or patient would

perceive the medical need in question as important and worthy of comment or treatment,

(2) whether the medical condition significantly affects daily activities, and (3) the existence of

chronic and substantial pain.” (Id. (quoting Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003)).)

“The second element, which goes to mental state, requires the plaintiff [to] show that

prison officials were ‘subjectively reckless in their denial of medical care.’” (Id. at 12 (quoting

Spavone, 719 F.3d at 138).) “This means that the official must have ‘appreciate[d] the risk to

which a prisoner was subjected,’ and have had a ‘subjective awareness of the harmfulness

associated with those conditions.’” (Id. (alteration in original) (quoting Darnell v. Pineiro, 849

F.3d 17, 35 (2d Cir. 2017)).) “An official’s awareness of the risk of serious harm can be

established through ‘inference from circumstantial evidence,’ including ‘from the very fact that

the risk was obvious.’” (Id. (quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)).) However,

neither “mere negligence” nor “mere disagreement over the proper treatment” is sufficient to

create a constitutional claim. (Id. (first quoting Walker v. Schult, 717 F.3d 119, 125 (2d Cir.

2013) and then quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)); see also id.

(“So long as the treatment given is adequate, the fact that a prisoner might prefer a different

treatment does not give rise to an Eighth Amendment violation.” (alteration omitted) (quoting

Chance, 143 F.3d at 703)).)

As with the original Complaint, the Amended Complaint fails to meet either prong of the

Eighth Amendment analysis. First, as the Court explained in the July Opinion, “[m]inor injuries,

such as a broken finger, have consistently been held to fall below the objective level of harm

required to maintain” a claim for deliberate indifference under the Eighth Amendment. (Id. at

12–13 (citing cases).) The seven-page addition to Plaintiff’s original Complaint confirms that

Plaintiff’s claim is limited to his dislocated ring finger, (see Am. Compl. 1–7), as such, the Court

confirms its ruling that “the alleged finger injury does not rise to the level of ‘an unreasonable

risk of serious damage to [Plaintiff’s] health,’” (July Op. 12 (quoting Walker, 717 F.3d at 125)).

Second, Plaintiff has again failed to demonstrate that Defendants—or any prison

official—denied Plaintiff medical care at all, let alone that they were “subjectively reckless in

their denial of medical care.” Spavone, 719 F.3d at 138. As the Court explained in the July

Opinion, “treatment of a prisoner’s medical condition generally defeats a claim of deliberate

indifference,” (July Op. 13 (quoting Melvin v. County of Westchester, No. 14-CV-2995, 2016

WL 1254394, at *7 (S.D.N.Y. Mar. 29, 2016))), and the records attached to the original

Complaint—which Plaintiff attached to his Amended Complaint, (see generally Am. Compl.)—

demonstrate that Plaintiff received ample medical treatment. As the Court detailed above,

Plaintiff was seen by Green Haven care providers on numerous occasions, was given at least two

x-rays, received a surgical procedure from an external orthopedic surgeon, had multiple follow-

up appointments with the orthopedic surgeon, and participated in two regimens of physical

therapy. See supra I.A.

Critically, Plaintiff does not appear to contest that he received medical treatment; rather,

his core allegation appears to be that his surgery was unreasonably delayed, which allegedly

caused him to suffer permanent damage to his finger. (See, e.g., Am. Compl. 4 (“Plaintiff

show[s] facts in his complaint that deliberate indifference was taken place by the delayed [sic] of

surgery.”); id. (“Plaintiff kept requesting medical attention from medical staff, medical staff

along with the named [sic] as ‘Defendant(s)’ were dilatory in getting the Plaintiff the treatment

neccessary [sic] to prevent the permentant [sic] damage to his finger, that was injured in the

facilit[y] gym.”).) But as the Court explained in the July Opinion, “a delay in treatment does not

violate the constitution unless it involves an act or failure to act that evinces a conscious

disregard of a substantial risk of serious harm.” (July Op. 14 (alteration omitted) (quoting Pabon

v. Wright, No. 99-CV-2196, 2004 WL 628784, at *8 (S.D.N.Y. Mar. 29, 2004), aff’d, 459 F.3d

241 (2d Cir. 2006)).) And “[h]ere, Plaintiff has not alleged any conduct or behavior that would

suggest the delay [in his finger surgery] was caused by [Defendants’] deliberate indifference.”

(Id. (alterations in original) (quoting Norman v. Marcilla, No. 17-CV-9174, 2019 WL 3066426,

at *5 (S.D.N.Y. July 11, 2019)).) As with the original Complaint, there are no allegations

suggesting that any Defendant took any affirmative steps to prevent Plaintiff from receiving

medical treatment; rather, Plaintiff—at most—suggests that Defendants (or unidentified other

prison officials) were negligent, which is insufficient to state a claim for deliberate indifference

as a matter of law. (See July Op. 14–15 (collecting cases).)

b. Equal Protection

Liberally construed, the Amended Complaint also attempts to state an Equal Protection

claim, based on Plaintiff’s allegations that “[t]hese violations fall under the Fourteenth

Amendment due to the lack of Equal Protection, which upon information & belief, would had

been [sic] afforded the Plaintiff [sic] had he been a ‘civilian’ patient and/or co-worker of the

Defendants under similar circumstances.” (Am. Compl. 6.) However, this allegation precisely

mirrors Plaintiff’s Equal Protection claim in his original Complaint, (see Compl. 4 (“[T]hese

violations fall under the Fourteenth Amendment due to the lack of Equal Protection, which, upon

information & belief, would had been [sic] afforded the Plaintiff [sic] had he been a ‘civilian’

and/or co-worker of the Defendants under similar circumstances.”)), and thus, fails for the same

reasons, (see July Op. 15–16).

Briefly, to adequately state an Equal Protection claim, “a plaintiff must allege ‘that he

was treated differently than others similarly situated as a result of intentional or purposeful

discrimination.’” (Id. at 15 (quoting Philips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005)).) The

“general rule” is that differential treatment by a state actor “is presumed to be valid and will be

sustained if the classification . . . is rationally related to a legitimate state interest.” City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). This general rule is only disturbed

if the classification is “inherently invidious because it disadvantages a suspect class, or because it

infringes upon the exercise of a fundamental right.” Hayden v. Paterson, 594 F.3d 150, 169 (2d

Cir. 2010). As the Court explained in the July Opinion, “prisoners either in the aggregate or

specified by offense are not a suspect class,” (July Op. 16 (quoting Zigmund v. Foster, 106

F. Supp. 2d 352, 362 (D. Conn. 2000)), and “Plaintiff does not allege to be part of any other

suspect class,” (id.), therefore, the Court applies rational basis review to Plaintiff’s Equal

Protection claim, (see id.). “[I]n the prison setting,” the application of rational basis review

“means that [Plaintiff] must demonstrate that his treatment was not ‘reasonably related to [any]

legitimate penological interests.’” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005) (last

alteration in original) (quoting Shaw v. Murphy, 532 U.S. 223, 225 (2001)). And as this Court

previously held, Plaintiff cannot meet this standard, because “any delay that Plaintiff experienced

in his medical care, without more, is explained by the ‘state’s interest in efficiently distributing

its limited resources’ along with a prison’s ‘space and security constraints.’” (July Op. 16 (first

quoting Hogan v. Russ, 890 F. Supp. 146, 148 (N.D.N.Y. 1995) and then quoting Allah v.

Annucci, No. 16-CV-1841, 2020 WL 3073184, at *11 (S.D.N.Y. June 10, 2020)).)5

3. State Law Claims

Plaintiff’s claims for “medical malpractice” and “medical negligence” continue to be

subject to dismissal. In the Amended Complaint, Plaintiff urges that he “need[s] the [C]ourt to

understand the facts of medical malpractice [and medical negligence] in his complaint,” and

explains that he “has lost the full mobility of his finger” based on “the lapse of time” between

Plaintiff’s injury and surgery. (Am. Compl. 3–4.) The Court understands Plaintiff’s allegations

and is sympathetic to any lingering effects that Plaintiff is experiencing, but these allegations do

not change the Court’s conclusion. As the Court previously explained, New York Correction

Law § 24 provides that “[n]o civil action shall be brought in any court of the state . . . against any

officer or employee of [DOCCS] . . . 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 employment and in the

discharge of duties by such officer or employee.” N.Y. CORRECT. LAW § 24. (See July Op. 16–

17.) The Second Circuit has held that “[t]his provision, by its plain terms, precludes the

assertion of [state law] claims against corrections officers in any court, including the federal

courts.” Baker v. Coughlin, 77 F.3d 12, 15 (2d Cir. 1996); see also Davis v. McCready, 283

F. Supp. 3d 108, 123 (S.D.N.Y. 2017) (“Courts in the Second Circuit have long held that [§] 24

5 Moreover, Plaintiff fails to state a “class of one” Equal Protection claim, for the reasons

explained in the July Opinion. (See July Op. 16 n.4.)

precludes a plaintiff from raising state law claims in federal court against state employees in their

personal capacities for actions arising within the scope of their employment.” (collecting cases)).

Because Defendants here were DOCCS employees performing their duties at Green Haven when

the alleged constitutional violations occurred, Plaintiff’s claims are barred by § 24 as a matter of

law.

4. Denial of Access to Law Library

To the extent Plaintiff seeks to interpose a claim for denial of access to the law library,

this claim is also dismissed. While it is axiomatic that prisoners “have a constitutional right of

access to the courts,” Bourdon v. Loughren, 386 F.3d 88, 92 (2d Cir. 2004) (quotation marks

omitted), and pro se inmates have a right to assistance in the form of “adequate law libraries or

adequate assistance from persons trained in the law,” Bounds v. Smith, 430 U.S. 817, 828 (1977),

Plaintiff cannot maintain a claim against Defendants (i.e., DOCCS employees at Green Haven)

for his alleged denial of access to the law library at Rikers Island. Plaintiff does not and cannot

allege any conduct on the part of Defendants that had any effect on his access to the Rikers

Island law library. See Bellezza v. Holland, 730 F. Supp. 2d 311, 314 (S.D.N.Y. 2010) (“To

establish a constitutional violation based on denial of access to the courts, a plaintiff must show

that the defendant’s conduct was deliberate and malicious, and that the defendant’s actions

resulted in an actual injury to the plaintiff.” (emphasis added) (quotation marks omitted)).6

6 If instead Plaintiff cites to the current conditions of his incarceration at Rikers Island as

a means of requesting that the Court accept his Amended Complaint or construe his Amended

Complaint liberally, (see Am. Compl. 7 (“Plaintiff ask the court also to take consideration [sic],

during the world pandemic transformation have been taken place [sic] in DOCCS . . . . Plaintiff

be granted for him to amended his complaint [sic].”)), the Court reminds Plaintiff that the Court

has already granted Plaintiff’s many requests to amend his original Complaint, see supra I.B, and

reemphasizes that the Court has construed Plaintiff’s Amended Complaint liberally in light of his

pro se status, see supra II.A.

Because the Court has found Plaintiff’s Amended Complaint to be subject to dismissal,

the Court declines to address Defendants’ argument that Defendants are entitled to qualified

immunity.

III. Conclusion

For the foregoing reasons, the Court grants Defendants’ Motion To Dismiss. Because

this is the second adjudication of Plaintiffs’ claims against Defendants on the merits and the

Court finds that any further amendment would be futile, the claims are dismissed with prejudice.

See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a

plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be

dismissed with prejudice.”); Denny v. Barber, 576 F.2d 465, 471 (2d Cir. 1978) (holding that the

plaintiff was not entitled to “a third go-around”); see also Herbert v. Delta Airlines, No. 12-CV-

1250, 2014 WL 4923100, at *5 (E.D.N.Y. Sept. 30, 2014) (dismissing complaint with prejudice

where “[the] [c]ourt previously granted [the pro se plaintiff] leave to replead, identifying his

original complaint’s deficiencies” and “[the plaintiff’s] amended complaint fails to correct any of

these deficiencies,” explaining that “the [c]ourt lacks the basis to believe further amended

pleadings would fare any better”).

The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt.

No. 46), to mail a copy of this Opinion & Order to Plaintiff, and close this case.

SO ORDERED.

Dated: January 13, 2022

White Plains, New York

KENNETH M. KARAS

United States District Judge