# Swinson v. The City of New York

> District Court, S.D. New York · January 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10337947

## Case

- **Court:** District Court, S.D. New York
- **Decided:** January 14, 2022
- **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/10337947

## How later opinions describe it (automated extraction)

- discussing what constitutes official municipal policy and deliberate indifference
- discussing principles of qualified immunity
- holding that “repeated failure to cure deficiencies by amendments previously allowed” is a basis to deny leave to amend

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RANDY SWINSON,
Plaintiff,
-v.- 19 Civ. 11919 (KPF)
THE CITY OF NEW YORK, SHERMA DUNBAR, OPINION AND ORDER
ASSISTANT DEPUTY WARDEN ELYN RIVERA,
and CAPTAIN JOHN HERNANDEZ,
Defendants.
KATHERINE POLK FAILLA, District Judge:
Plaintiff Randy Swinson brings this civil rights action under 42 U.S.C.
§ 1983 against Defendant The City of New York (the “City”) and several of its
employees (collectively, “Defendants”), asserting constitutional claims that arise
from events that occurred while he was detained at the Manhattan Detention
Complex (“MDC”) and, later, at the George R. Vierno Center on Rikers Island
(“GRVC”). In brief, Plaintiff claims that: (i) his rights to privacy concerning
medical and mental health information were infringed; (ii) prison officers were
deliberately indifferent to his medical needs; (iii) certain other conditions of his
confinement were unconstitutional; and (iv) he was retaliated against for filing

prison grievance forms and initiating the instant case.
Since commencing this lawsuit in December 2019, Plaintiff has sought to
amend his complaint several times. The operative complaint is the Third
Amended Complaint (the “TAC”), filed on December 18, 2020. Defendants have
moved to dismiss the TAC on various grounds; Plaintiff has not opposed this
motion, and indeed has offered to withdraw his claims without prejudice, but
Defendants seek to have Plaintiff’s claims dismissed with prejudice. For the
reasons set forth in the remainder of this Opinion, the Court grants
Defendants’ motion insofar as it dismisses Plaintiff’s federal claims with

prejudice.
BACKGROUND1
A. Factual Background
Plaintiff Randy Swinson is currently housed at GRVC, after being
arrested in November 2021. See N.Y.C. Dep’t of Correction Inmate Lookup
Service, https://a073-ils-web.nyc.gov/inmatelookup/pages/home/home.jsf

1 This Opinion draws its facts from the well-pleaded allegations of the TAC (Dkt. #37),
which allegations the Court assumes to be true for purposes of this Opinion. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court also considers the exhibits
attached to the TAC. See Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016)
(discussing materials that may properly be considered in resolving a motion to dismiss).
For ease of reference, the Court refers to Defendants’ memorandum of law in support of
its motion to dismiss the Complaint as “Def. Br.” (Dkt. #46). Other submissions in the
case will be cited by docket entry number, and the Court’s pinpoint citations to
Plaintiff’s submissions will refer to the page numbers assigned by this Court’s electronic
case filing (“ECF”) system.
The underlying Complaint filed by Plaintiff on December 30, 2019, named as
defendants the City, Elyn Rivera, and John Hernandez, along with several medical
professionals and Correctional Health Services. (Dkt. #2). Summonses were issued for
each defendant. (Dkt. #6). The First Amended Complaint, filed on September 9, 2020,
provided additional information about a subset of these defendants, but did not appear
to modify the claims asserted. (Dkt. #26). The Second Amended Complaint, filed on
November 17, 2020, but later stricken from the record, named as defendants the City
(naming specifically then-Mayor DeBlasio), Hazel Jennings, Sherma Dunbar, and
Jennifer Cottman. (Dkt. #33). The operative TAC names as defendants in the case
caption the City, Sherma Dunbar, Elyn Rivera, and John Hernandez, and names as
defendants in the section captioned “Defendant Information” these four Defendants and
Hazel Jennings. (TAC 1, 3). However, the body of the TAC appears to also name as
defendants prison physician assistants Ira Gornish and Bessie Flores-Clemente. For
avoidance of doubt, defense counsel has confirmed that the Law Department of the City
of New York represents, and has filed the instant motion on behalf of, “all Defendants
named or referenced in the TAC.” (Dkt. #52). The Court therefore refers collectively to
the City and the six individual defendants named or referenced in the TAC as
“Defendants.” Given the disposition of this motion, the Court will not amend the
caption further.
(last accessed Jan. 14, 2022). Plaintiff alleges that during the relevant time
period, Defendant Hazel Jennings was the Chief of the New York City
Department of Correction (the “DOC”); Defendant Sherma Dunbar was the

Warden of both MDC and GRVC; Defendant Elyn Rivera was a correction
officer and Deputy Warden; Defendant John Hernandez was a captain and
correction officer; and Defendants Ira Gornish and Bessie Flores-Clemente
were MDC physician assistants. (TAC 4-6).
In November 2019, Plaintiff was housed in a lockdown unit, Unit 9
North, at MDC in lower Manhattan. (TAC 7). During his time in Unit 9 North,
Plaintiff claims that his privacy rights were violated and that prison personnel
acted with deliberate indifference to his medical needs. In particular, Plaintiff

claims that during sick-call rounds, medical professionals examined Plaintiff
through his cell door and asked him questions about his medical and mental
health conditions within earshot of correction officers and other detainees in
the unit, instead of taking him to the facility clinic or to a separate triage area
on the ninth floor. (Id.). Though Plaintiff claims to have filed several
grievances related to the matter, the situation did not improve. (Id.). Plaintiff
came to learn that prison medical professionals were acting pursuant to a
Command Level Order (the “MDC CLO”) approved by Warden Dunbar and

reviewed by Deputy Warden Rivera, which order implemented numerous
restrictions on inmates housed in lockdown areas at MDC. (Id.; id. at Ex. A-B).
Plaintiff contends that certain medical and other restrictions in the MDC CLO
fall below the Minimum Standards adopted by the New York City Board of
Correction (the “BOC”), and for this reason are unconstitutional. (Id. at 7-9).
See https://www1.nyc.gov/site/boc/jail-regulations/minimum-standards.page
(last accessed Jan. 14, 2022).

Plaintiff further claims that “Defendant” (he does not specify which)
“showed deliberate indifference to the medical needs of the Plaintiff, and
particularly neglected those of others at ‘9 North.’” (TAC 8). Plaintiff also
claims more broadly that medical care was “inadequate” and that “[d]eficiencies
were the norm,” citing, among other things, his inability to obtain examinations
or care upon request, as well as once-weekly, instead of once-daily, sick calls.
(Id.). Plaintiff further complains about other conditions of his confinement,
including the failure of prison officials to answer his grievances or to forward

them to the Central Office Review Committee (“CORC”); the loss of or tampering
with his mail; the delivery of mail by security personnel rather than mailroom
personnel; what he refers to as “no grooming”; the insufficient provision of
undergarments; and the failure to provide access to legal research. (Id. at 9-
10).
Plaintiff also claims to have been retaliated against for filing grievances
and for filing the instant litigation. (TAC 8-9). In November 2020, Plaintiff was
transferred from MDC to GRVC. (Id. at 9). According to Plaintiff, Defendant

Dunbar modified the relevant CLO regarding lockdown conditions at GRVC (the
“GRVC CLO”) at or near the time of his transfer so that it was as restrictive as
the MDC CLO, and so that “currently there [are] no services, sick call or
medical privacy and confidentiality.” (Id.). Plaintiff further alleges that
Defendants retaliated against him by listing him as a suspected gang member,
though he quickly resolved the matter after filing a grievance. (Id. at Ex. D).
Plaintiff further alleges that, within a week of his arrival at GRVC, Defendants

stopped his mail service, his visits with family, and his ability to participate in
religious observances. (Id. at 9-10). And at the end of the TAC, Plaintiff lists
various items and services of which he has been deprived while at GRVC.
B. Procedural Background
Plaintiff filed a request for leave to proceed in forma pauperis (“IFP”) and a
complaint on December 30, 2019. (Dkt. #1-2). The Court granted his IFP
application on January 23, 2020 (Dkt. #4), and issued an order of service on
February 3, 2020 (Dkt. #6). The Court scheduled an initial pretrial conference
in the matter (Dkt. #8), and the defendants then named in the complaint

indicated their intention to file a motion to dismiss (Dkt. #20-21). A pre-motion
conference was held on July 24, 2020, during which Plaintiff was given an
opportunity to file an amended complaint on or before October 30, 2020. (See
Dkt. #22 (transcript of conference of July 24, 2020)).
Plaintiff filed his First Amended Complaint on September 29, 2020. (Dkt.
#26-27). The defendants named in that complaint again indicated their intent
to move to dismiss, and the Court scheduled briefing for that motion. (Dkt.
#28-29). Those defendants filed a motion to dismiss on November 9, 2020

(Dkt. #30-32), but Plaintiff responded by filing a Second Amended Complaint
that was stricken from the docket (Dkt. #33). By Order dated November 20,
2020, the Court granted Plaintiff a final opportunity to amend his pleadings
and denied the pending motion to dismiss as moot. (Dkt. #36).
Plaintiff filed the TAC on December 18, 2020. (Dkt. #37). Defendants

indicated their intention to move to dismiss, and the Court scheduled briefing
on the motion by memo endorsement dated February 1, 2021. (Dkt. #38-39).
After obtaining several extensions, Defendants filed their motion to dismiss on
March 5, 2021. (Dkt. #45-47). In response, Plaintiff filed a letter on April 30,
2021, requesting that the matter be dismissed without prejudice so that it
could be consolidated into a separate state court action that Plaintiff had filed.
(Dkt. #48). Defendants objected to dismissal of the case without prejudice, and
the Court consequently denied Plaintiff’s request while scheduling an extended

period of time within which he could file an opposition to Defendants’ motion.
(Dkt. #51). No opposition has been received, and the Court considers briefing
on the motion to be complete.
DISCUSSION
A. Applicable Law
1. Motions to Dismiss Under Federal Rule of Civil Procedure
12(b)(6)
“[A]lthough a party is of course to be given a reasonable opportunity to
respond to an opponent’s motion, the sufficiency of a complaint is a matter of
law that the court is capable of determining based on its own reading of the
pleading and knowledge of the law.” McCall v. Pataki, 232 F.3d 321, 322-23
(2d Cir. 2000). Accordingly, “the plaintiff’s failure to respond to a Rule 12(b)(6)
motion does not [itself] warrant dismissal,” and the district court must
determine whether dismissal of the complaint is appropriate on the merits. Id.
at 323.
When considering a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), a court should “draw all reasonable inferences in Plaintiff[’s]
favor, assume all well-pleaded factual allegations to be true, and determine
whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life
Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks and citation
omitted). “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)). The Court is tasked with applying the

same standard irrespective of whether a motion to dismiss is unopposed. See
Haas v. Com. Bank, 497 F. Supp. 2d 563, 564 (S.D.N.Y. 2007) (“In deciding an
unopposed motion to dismiss, a court is to assume the truth of a pleading’s
factual allegations and test only its legal sufficiency[.]” (internal quotation
marks omitted) (quoting McCall, 232 F.3d at 322)). While the plausibility
requirement “is not akin to a ‘probability requirement’ ... it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at
678. Toward that end, a plaintiff must provide more than “an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Id.
A court adjudicating a motion to dismiss under Rule 12(b)(6) “may review
only a narrow universe of materials.” Goel v. Bunge, Ltd., 820 F.3d 554, 559
(2d Cir. 2016). This narrow universe includes “facts stated on the face of the
complaint, ... documents appended to the complaint or incorporated in the
complaint by reference, and ... matters of which judicial notice may be taken,”
as well as documents that can properly be considered “integral” to the

complaint. Id. (internal citation omitted). In resolving the instant motion, the
Court considers both the TAC and its exhibits.
“[C]ourts must construe pro se pleadings broadly, and interpret them ‘to
raise the strongest arguments that they suggest.’” Cruz v. Gomez, 202 F.3d
593, 597 (2d Cir. 2000) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996)). “However inartfully pleaded, a pro se complaint may not be dismissed
under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of her claim which would entitle her to relief.” Legeno

v. Corcoran Grp., 308 F. App’x 495, 496 (2d Cir. 2009) (summary order)
(internal quotation marks and alterations omitted) (quoting Posr v. Ct. Officer
Shield No. 207, 180 F.3d 409, 413 (2d Cir. 1999)). “That said, the liberal
pleading standard accorded to pro se litigants is not without limits, and all
normal rules of pleading are not absolutely suspended.” Hill v. City of New
York, No. 13 Civ. 8901 (KPF), 2015 WL 246359, at *2 (S.D.N.Y. Jan. 20, 2015)
(internal quotation marks and citation omitted). To survive a Rule 12(b)(6)
motion to dismiss, a pro se plaintiff’s factual allegations still must at least “be

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S.
at 555. And even in the pro se context, the court is not bound to accept
“conclusory allegations or legal conclusions masquerading as factual
conclusions.” Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (quoting
Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002)).
2. Civil Rights Actions Under 42 U.S.C. § 1983
“[42 U.S.C. § 1983] creates no substantive rights; it merely provides

remedies for deprivations of rights established elsewhere.” City of Oklahoma
City v. Tuttle, 471 U.S. 808, 816 (1985). There are two essential elements to
any claim raised under Section 1983: “[i] the defendant acted under color of
state law; and [ii] as a result of the defendant’s actions, the plaintiff suffered a
denial of her federal statutory rights, or her constitutional rights or privileges.”
Annis v. Cnty. of Westchester, 136 F.3d 239, 245 (2d Cir. 1998).
The Court first outlines the pleading requirements for Plaintiff’s claims
against the individual Defendants. “To establish a [Section] 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)
(summary order) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
Failing to allege that a defendant was personally involved in, or responsible for,
the conduct complained of renders a complaint “fatally defective on its face.”
Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (internal
quotation marks omitted). Conversely, “group pleading,” which “fail[s] to
differentiate as to which defendant was involved in the alleged unlawful

conduct,” is insufficient to state a claim under Section 1983. Myers v. Moore,
326 F.R.D. 50, 60 (S.D.N.Y. 2018). To satisfy Rule 12(b)(6), a plaintiff must
make “specific factual allegations” against each defendant. Thomas v. Venditto,
925 F. Supp. 2d 352, 363 (E.D.N.Y. 2013).
The fact that a defendant is a supervisor does not suffice under Section

1983 to impute personal involvement to that person; instead, liability requires
that the “defendant, through the official’s own individual actions, has violated
the Constitution.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)
(quoting Iqbal, 556 U.S. at 676).2 Indeed, “a plaintiff must plead and prove the
elements of the underlying constitutional violation directly against the official
without relying on a special test for supervisory liability.” Id. at 620. In other
words, an individual defendant may not be held liable under Section 1983
merely because that defendant employs or supervises a person who violated

the plaintiff’s rights.
Stating a Section 1983 claim against a municipal entity, such as the
City, requires additional pleading. “[M]unicipalities may be sued directly under
[Section] 1983 for constitutional deprivations inflicted upon private individuals
pursuant to a governmental custom, policy, ordinance, regulation, or decision.”

2 In so holding, Tangreti recognized the abrogation, at least in part, of the prior five-factor
test for supervisory liability set forth in Colon v. Coughlin, by which “personal
involvement” was determined by considering whether:
[i] the defendant participated directly in the alleged constitutional
violation, [ii] the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong, [iii] the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom, [iv] the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or [v] the
defendant exhibited deliberate indifference to the rights of inmates
by failing to act on information indicating that unconstitutional
acts were occurring.
58 F.3d 865, 873 (2d Cir. 1995) (citations omitted).
Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (citing Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 690-91 (1978)). Under Monell and its progeny,
municipalities are not subject to liability for Section 1983 claims under a

theory of respondeat superior, but rather on the basis that their policies or
customs inflicted the alleged injuries. Id.
To hold a municipality liable under Section 1983 for the unconstitutional
actions of its employees, a plaintiff is required to plead and prove three
elements: (i) the existence of an official policy or custom that (ii) causes the
plaintiff to be subjected to (iii) a denial of a constitutional right. Batista, 702
F.2d at 397; accord Torcivia v. Suffolk Cnty., New York, 17 F.4th 342, 354 (2d
Cir. 2021). The plaintiff may show the existence of such a policy or custom by

identifying any of the following: (i) an express policy or custom; (ii) an
authorization of a policymaker of the unconstitutional practice; (iii) failure of
the municipality to train its employees, which exhibits a “deliberate
indifference” to the rights of its citizens; or (iv) a practice of the municipal
employees that is “so permanent and well settled as to imply the constructive
acquiescence of senior policymaking officials.” Corley v. Vance, 365 F. Supp.
3d 407, 438 (S.D.N.Y. 2019), aff’d sub nom. Corley v. Wittner, 811 F. App’x 62
(2d Cir. 2020) (summary order); see also Outlaw v. City of Hartford, 884 F.3d

351, 372-73 (2d Cir. 2018) (discussing what constitutes official municipal
policy and deliberate indifference).
B. Analysis
1. Plaintiff’s Allegations Against Each Defendant
As just noted, a plaintiff alleging a Section 1983 claim must identify the
ostensibly violative conduct of each defendant. In the instant case, Plaintiff
weaves individualized allegations with group pleading of violations. The Court

has read his pleadings liberally, and understands the conduct attributable to
each Defendant to be as follows:
The City of New York is alleged to have, through its agents, “operated,
maintained and controlled the New York City Department of Correction[],
including all the correction officers thereof.” (TAC 4). The Court understands
Plaintiff to be ascribing responsibility to the City for unconstitutional acts
stemming from the implementation of CLOs that departed from the BOC’s
Minimum Standards, and from the conduct of its employees and agents.

Hazel Jennings is alleged to have served as the Chief of the New York
City Department of Correction during the relevant time period. (TAC 4). No
other conduct is attributed to her in the TAC. For this reason, all claims
against her are dismissed. See Tangreti, 983 F.3d at 621.
Sherma Dunbar is alleged to have served as the Warden of both MDC
and GRVC during the relevant time period. (TAC 4-5). Plaintiff alleges that
Defendant Dunbar violated his rights by issuing two CLOs, the first of which

addressed conditions in lockdown units at MDC and the second of which
addressed conditions in lockdown units in GRVC. (Id. at 5; id. at Ex. A-B).
According to the TAC, the MDC CLO violated Plaintiff’s constitutional rights “by
denying or eliminating the Plaintiff’s minimum standards and health
care/mental health minimum standards.” (Id. at 7). Plaintiff further alleges
that immediately after he began filing grievances against Dunbar and the other

Defendants, “all services this Plaintiff and other 9 North residents [were]
entitled to by Minimum Standards Policy were taken away by” the MDC CLO.
(Id. at 8-9). Similarly, Dunbar “changed” the CLO after Plaintiff was transferred
to GRVC. (Id. at 9).3 As a result, “now currently there are no services, sick
call, or medical privacy and confidentiality” at GRVC. (Id.).
Elyn Rivera is alleged to have served as a correction officer and Deputy
Warden during the relevant time period. (TAC 5). Though Plaintiff attributes
no specific actions to Rivera in the TAC, Exhibit A to the TAC indicates that

Rivera approved the MDC CLO in her concurrent capacities as Deputy Warden
for Security and Deputy Warden for Programs. (Id. at Ex. A).
John Hernandez is identified in the TAC as a “Correction Officer Captain”
at MDC. (TAC 5). The only conduct attributed to him is Plaintiff’s allegation
that “mail was being lost or tampered with and delivered by Capt. John
Hernandez and security team instead of mailroom officers.” (Id. at 9).4

3 Plaintiff suggests that the GRVC CLO supplanted the MDC CLO, and, further, that the
change in CLOs was concurrent with (and related to) his transfer to GRVC. (TAC 9; id.
at Ex. A-B). His own exhibits undermine this argument. The two CLOs address
different subject matters, with the first, effective as of April 12, 2019, pertaining to
lockdown conditions at MDC (where Dunbar was then Acting Warden), and the second,
effective as of November 2, 2020, pertaining to lockdown conditions at GRVC (where
Dunbar was then Warden). There is nothing in the CLOs or in Plaintiff’s pleading to
suggest that the restrictions were specific to or influenced by any conduct of Plaintiff.
4 In the underlying complaint, Plaintiff alleged that Hernandez was the security captain
in charge of the unit in which Plaintiff was housed at MDC. (Dkt. #2 at 7). Plaintiff
suggested in that complaint that Hernandez was liable for failing to train staff properly
Ira Gornish and Bessie Flores-Clemente are alleged to have served as
physician assistants at MDC. (TAC 6-7). Each is alleged to have responded to
one or more requests for medical attention from Plaintiff by providing care at

Plaintiff’s cell door, without opening the cell and taking Plaintiff to a more
private area. In addition, each is alleged to have asked Plaintiff for background
and other information while correction officers and other detainees were
present.
2. Plaintiff Has Not Alleged a Violation of His Right to Privacy
Plaintiff first claims that his right to privacy regarding his medical and
mental health issues was violated when medical professionals at MDC
conducted sick calls at Plaintiff’s cell door rather than a more private area, and
when these same professionals asked Plaintiff questions about medical and

mental health issues within earshot of correction officers and other inmates.
(TAC 7). These claims would appear to pertain to the specific actions of
Defendants Gornish and Flores-Clemente, and might extend to the making and
implementing of the MDC CLO by Defendants Dunbar and Rivera. Cf. Stone #1
v. Annucci, No. 20 Civ. 1326 (RA), 2021 WL 4463033, at *8 (S.D.N.Y. Sept. 28,
2021) (“Although the Second Circuit generally rejected Colon, Tangreti does not
suggest that Colon’s third factor — whereby a defendant can be said to be
personally involved in a constitutional violation if he ‘created a policy or custom

under which unconstitutional practices occurred, or allowed the continuance of

on issues of “care[,] custody[,] and control” (id.), though such claims are not repeated in
the TAC and are not considered in this Opinion.
such a policy or custom,’ — could never form the basis of an official’s liability.”
(internal citation omitted)). Defendants respond that none of Plaintiff’s
allegations concerning medical or mental health treatment supports a claim for

constitutional violations. (Def. Br. 5-8).
The Due Process Clause of the Fourteenth Amendment protects an
inmate’s right to the confidentiality of medical information for certain medical
conditions. See Powell v. Schriver, 175 F.3d 107, 111-12 (2d Cir. 1999); see
also Matson v. Bd. of Educ. of City Sch. Dist. of New York, 631 F.3d 57, 63-64
(2d Cir. 2011) (characterizing the constitutional right to privacy as a right to
confidentiality, which includes a right to protection regarding information
about the state of one’s health). Those medical conditions entitled to

confidentiality are conditions that are (i) “excruciatingly private and intimate
[in] nature” and (ii) “likely to provoke both an intense desire to preserve one’s
medical confidentiality, as well as hostility and intolerance from others.”
Matson, 631 F.3d at 64 (citations omitted). Courts have found that the right to
confidentiality of medical information extends to medical conditions like HIV,
transsexualism, and sickle cell anemia. See Powell, 175 F.3d at 112
(transsexualism); Doe v. City of New York, 15 F.3d 264, 267 (2d Cir. 1994)
(HIV); Fleming v. State Univ. of New York, 502 F. Supp. 2d 324, 343 (E.D.N.Y.

2007) (sickle cell anemia). Conversely, courts in this Circuit have declined to
extend this privacy right to serious medical conditions that are not likely to
provoke hostility or intolerance. See, e.g., Matson, 631 F.3d at 67-68 (declining
to extend right to privacy to fibromyalgia); Dash v. Doe, No. 19 Civ. 414 (GBD)
(JLC), 2020 WL 3057133, at *3 (S.D.N.Y. June 9, 2020) (adopting Report and
Recommendation that declined to extend right to privacy to bipolar condition,
noting that “[s]everal courts in the Second Circuit have declined to expand this

protection to cover the disclosure of mental health disorders” (collecting cases));
Crosby v. Petermann, No. 18 Civ. 9470 (JGK), 2020 WL 1434932, at *10
(S.D.N.Y. Mar. 24, 2020) (declining to extend right to privacy to hepatitis C);
Myers v. Dolac, No. 09 Civ. 6642 (MWP), 2013 WL 5175588, at *7 (W.D.N.Y.
Sept. 12, 2013) (“[C]ourts have declined to recognize constitutional protection
for many other medical conditions, including fibromyalgia, arthritis and sleep
apnea.” (collecting cases)). Even where an inmate holds a privacy right in
maintaining the confidentiality of his medical information, prison officials can

encroach on that right, but only to the extent that their actions are “reasonably
related to legitimate penological interests.” Powell, 175 F.3d at 112 (quoting
Turner v. Safley, 482 U.S. 78, 89 (1987)).
Plaintiff alleges that prison medical professionals discussed “background
information” in front of other inmates and correction officers, while asking him
questions about “prior drug use, HIV status, mental health, alcohol addiction,
family’s history of mental health, history, etc.” (TAC 7). However, Plaintiff does
not provide his answers to those questions, and the Court therefore cannot

conclude that Plaintiff has alleged a privacy right in the confidentiality of any of
the information he disclosed. Cf. Pisciotti v. Cnty. of Wayne, 76 F. Supp. 2d
307, 310 (W.D.N.Y. 1999) (“Given the ‘mundane’ nature of the information, I
find that whatever interest that plaintiff had in maintaining the secrecy of this
information was insufficient to give rise to a violation of his privacy rights.”
(internal citation omitted)).
Even assuming that Plaintiff had adequately alleged such a privacy right,

the TAC discloses prison officials’ legitimate penological interest in conducting
the medical examinations in the manner described by Plaintiff. Plaintiff alleges
that — while in lockdown status — he requested sick call services on several
occasions, which requests prompted visits from and discussions with medical
professionals. (TAC 7-8).5 The MDC CLO stated that necessary medical or
mental health services would be provided in the housing area, and that
detainees in lockdown would not be moved to the clinic unless it was
“physically impossible to provide them with the necessary medical services in

the cell/housing area.” (Id. at Ex. A at 4). To conduct medical visits in the
presence of other detainees and corrections officers is not, on the facts alleged,
a violation of Plaintiff’s Fourteenth Amendment rights. See Pena v. Downstate
Correctional Facility Med. Dep’t, No. 19 Civ. 7336 (LLS), 2020 WL 1467372, at
*3 (S.D.N.Y. Mar. 25, 2020) (“[T]he Constitution does not guarantee that a
medical examination of a prisoner must be conducted in private.” (citation
omitted)); Rodriguez v. Ames, 287 F. Supp. 2d 213, 221 (W.D.N.Y. 2003)
(“Prompt examinations of inmates in their cells [are] often the most practical

way to provide necessary treatment and to determine if in fact more extensive
examinations are needed in the infirmary or outside the institution.”); cf.

5 Plaintiff does not contest his placement in a lockdown unit at either MDC or GRVC.
(See generally TAC).
Michael v. Perez, No. 16 Civ. 7850 (VB), 2017 WL 5991794, at *2 (S.D.N.Y.
Dec. 1, 2017) (“The facts as alleged show [defendant] disclosed the medical
information in the course of providing emergency medical treatment to an

inmate, a legitimate penological interest.”). In this regard, it is significant to
the Court that Plaintiff does not allege that the information he provided was
shared gratuitously, or that prison medical professionals made light of his
conditions, or that his answers prompted hostility on the part of prison staff or
inmates. See Powell, 175 F.3d at 112 (“[T]he gratuitous disclosure of an
inmate’s confidential medical information as humor or gossip ... is not
reasonably related to a legitimate penological interest, and it therefore violates
the inmate’s constitutional right to privacy.”); Rodriguez, 287 F. Supp. 2d at

220 (“In addition, where information about a particular condition spreads
through ‘humor or gossip,’ it is more likely that the inmate’s right to privacy
has been violated.” (citing Powell, 175 F.3d at 112)). Accordingly, the Court
dismisses Plaintiff’s Section 1983 claim alleging a violation of his right to
privacy.
3. Plaintiff Has Not Alleged Deliberate Indifference to His Medical
Needs
Separately, Plaintiff claims that prison officials at MDC were deliberately
indifferent to his medical needs, as well as the needs of others housed in Unit 9
North. (TAC 8).6 On this point, Plaintiff claims that medical care was

6 The Court considers only Plaintiff’s allegations concerning his own treatment. Cf. Kelly
v. Rockefeller, 69 F. App’x 414, 416 (10th Cir. 2003) (unpublished order) (“A civil rights
action must be based on the violation of plaintiff’s personal rights, and not the rights of
someone else.” (internal quotation marks and citation omitted)).
“inadequate and [un]professional”; that medical records were not used in
making diagnoses; that sick calls did not occur every day; and that he had to
resort to extreme measures (including filing grievances and a civil action) to

receive medical care. (Id.). As in the preceding section, the Court considers
this claim to be brought against Defendants Gornish, Flores-Clemente,
Dunbar, and Rivera.
Claims by pretrial detainees of unconstitutional conditions of
confinement, such as inadequate medical care, are analyzed under the
Fourteenth Amendment’s Due Process Clause, rather than the Eighth
Amendment’s Cruel and Unusual Punishment Clause. Darnell v. Pineiro, 849
F.3d 17, 29 (2d Cir. 2017); see generally Gray v. Ramos, No. 19 Civ. 3836

(KPF), 2021 WL 795166, at *5-6 (S.D.N.Y. Mar. 2, 2021). As a practical matter,
however, “[a] detainee’s rights are ‘at least as great as the Eighth Amendment
protections available to a convicted prisoner.’” Darnell, 849 F.3d at 29 (quoting
City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).
A claim for inadequate medical care requires a showing of “deliberate
indifference to ... serious medical needs,” which in turn requires proof of two
elements: “medical need” and “deliberate indifference.” Smith v. Carpenter, 316
F.3d 178, 183-84 (2d Cir. 2003). The first element, “medical need,” is objective,

measuring “the severity of the alleged deprivation.” Id. Courts assessing this
objective prong “examine how the offending conduct is inadequate and what
harm, if any, the inadequacy has caused or will likely cause” the plaintiff.
Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). Factors informing this
analysis include “[i] whether a reasonable doctor or patient would perceive the
medical need in question as ‘important and worthy of comment or treatment,’
[ii] whether the medical condition significantly affects daily activities, and

[iii] ‘the existence of chronic and substantial pain.’” Brock v. Wright, 315 F.3d
158, 162 (2d Cir. 2003) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d
Cir. 1998)). In addition, “the actual medical consequences that flow from the
alleged denial of care will be highly relevant[.]” Smith, 316 F.3d at 187; see also
Yancey v. Robertson, 828 F. App’x 801, 803 (2d Cir. 2020) (summary order)
(“For a constitutional violation to occur based on deliberate indifference to a
prisoner’s medical need, the deprivation of medical care must be ‘sufficiently
serious’ in the sense that ‘a condition of urgency, one that may produce death,

degeneration, or extreme pain’ exists.” (internal quotation marks omitted)
(quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996))).
The Second Circuit has clarified that the second element, “deliberate
indifference,” though often characterized as “subjective,” is better understood
as an element simply analyzing mens rea because it is “defined objectively.”
Darnell, 849 F.3d at 29, 35. Indeed, this so-called subjective prong requires
proof that the defendant “acted intentionally to impose the alleged condition, or
recklessly failed to act with reasonable care to mitigate the risk that the

condition posed to the pretrial detainee even though the defendant[ ] knew, or
should have known, that the condition posed an excessive risk to health or
safety.” Id. at 35. This standard therefore does not encompass “an inadvertent
failure to provide adequate medical care[.]” Estelle v. Gamble, 429 U.S. 97, 105
(1976).
Once again, Plaintiff’s conclusory pleadings are inadequate to state a

claim under the Fourteenth Amendment. To be clear, the Court is troubled by
any allegation that sick call procedures were skipped, and it takes seriously
Plaintiff’s claim that he had to become the proverbial “squeaky wheel” to
receive medical attention. (See TAC 8). That said, Plaintiff does not identify
any medical issues that he experienced during the relevant time period, nor
does he state a “sufficiently serious” deprivation of medical care. Indeed,
Plaintiff does not indicate how any such medical issues were exacerbated, or
even affected, by the care that he received. And while private examinations

outside of his housing unit and more assiduous consultation of written medical
records might constitute better practices, Plaintiff does not explain how any of
the medical attention he received in lockdown status precipitated “the risk of
serious damage to [his] ‘physical and mental soundness.’” See Darnell, 849
F.3d at 30. Similarly, by employing the passive voice in his pleadings (see e.g.,
TAC 8 (“Medical records vital in assessing a patient[’]s potential for future
sickness were not used to assist diagnoses.”)), Plaintiff has failed to allege that
any of the Defendants acted with the requisite knowledge or intent to satisfy

the mens rea prong of the deliberate indifference analysis. Accordingly, the
Court dismisses Plaintiff’s claim for deliberate indifference to his medical
needs.7
4. Plaintiff’s Other Claims Regarding the Conditions of His
Confinement Do Not State Constitutional Violations
The TAC, by its terms, recites two claims: “Count One: Medical and
Mental Health Privacy and Confidentiality Violations” and “Count Two:
Retaliatory Treatment for Filing Section 1983 Claim and for Filing Grievances.”
(TAC 7-8). However, sprinkled throughout the TAC are other allegations
regarding Plaintiff’s conditions of confinement at MDC and GRVC. The alleged

deficiencies include, inter alia:
 Failure to answer grievances or to forward grievances to
CORC (TAC 9);
 Loss of or tampering with mail (id.);
 Delivery of mail by security officers rather than
mailroom staff (id.);
 “[S]topp[ing]” of mail, family visits, and religious
services (id.);
 “[N]o grooming” (id. at 10);
 Plaintiff’s placement in shackles (id.);
 The inability to attend religious services (id.);
 The inability to visit with family or make legal calls (id.);
 The lack of “social services” (id.);
 Insufficient undergarments (id.); and

7 Later in the TAC, Plaintiff alleges that after being designated a gang member at GRVC,
he was placed in shackles and leg irons that “aggravated physical injuries.” (TAC 10).
Without pleading any detail concerning the injuries or the conduct, Plaintiff has failed
to state a claim for deliberate indifference to his medical needs.
 Deficiencies in legal research (id.).
Many of the restrictions are required by the CLOs, and Plaintiff alleges that
those restrictions depart from, or are violative of, the BOC’s Minimum
Standards. Even were that true, a defendant’s violation of the Minimum

Standards does not, standing alone, establish a violation of a federally
guaranteed right for purposes of Section 1983. See Knight v. Mun. Corp.,
No. 14 Civ. 3783 (PAE) (JCF), 2016 WL 4030632, at *6 n.7 (S.D.N.Y. July 26,
2016) (internal citations omitted); accord, e.g., Winters v. City of New York,
No. 19 Civ. 7271 (MKV), 2020 WL 4194633, at *5 (S.D.N.Y. July 21, 2020)
(collecting cases); Corley v. City of New York, No. 14 Civ. 3202 (GHW), 2017 WL
4357662, at *10 (S.D.N.Y. Sept. 28, 2017) (collecting cases).
Mindful of the solicitude due the submissions of a pro se litigant, the

Court will construe Plaintiff’s objections to his conditions of confinement as
standalone constitutional arguments. Caselaw in this area indicates that
certain of the conditions alleged by Plaintiff could be pleaded to state a
constitutional violation, while others could not. As relevant to Plaintiff’s
allegations, courts in this District have found that:
 Prison grievance procedures do not create a liberty
interest subject to due process protection, see George v.
Cnty. of Westchester, No. 20 Civ. 1723 (KMK), 2021 WL
4392485, at *4 (S.D.N.Y. Sept. 24, 2021) (collecting
cases);
 Temporary deprivations of grooming and hygiene
products fail to make out a Section 1983 claim, see
Little v. Mun. Corp., 51 F. Supp. 3d 473, 491-92
(S.D.N.Y. 2014) (collecting cases); and
 It is not “clearly established,” for purposes of qualified
immunity, that there is a constitutional right to
visitation between inmates and family members, see
Miller v. Annucci, No. 17 Civ. 4698 (KMK), 2019 WL
4688539, at *14 n.5 (S.D.N.Y. Sept. 26, 2019).
In contrast, there is caselaw suggesting that certain of Plaintiff’s other
objections to his conditions of confinement could form the basis of a
constitutional violation. For instance, courts in the Second Circuit have found
that an inmate may bring:
 First and Fourteenth Amendment claims for mail
tampering if plaintiff can show (i) an ongoing practice of
censorship unjustified by a substantial government
interest, or (ii) that jail officials have unjustifiably
chilled the prisoner’s right of access to the court or
impaired his legal representation, see Davis v. Goord,
320 F.3d 346, 351 (2d Cir. 2003);
 A claim for impairment of religious observances claims
under the Free Exercise Clause of First Amendment and
the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”), see McLeod v. Williams, No. 18 Civ. 115
(RA), 2020 WL 2512164, at *3-4 (S.D.N.Y. May 15,
2020);
 A claim for denial of access to a law library, see Rosado
v. Maxymillian, No. 20-3965-cv, 2022 WL 54181, at *1
(2d Cir. Jan. 6, 2022) (summary order); and
 A claim for denial of access to court, see Perry v.
Maloney, No. 21 Civ. 8039 (LTS), 2021 WL 6127070, at
*5 (S.D.N.Y. Dec. 27, 2021).
But even as to those allegations that could state a constitutional violation,
Plaintiff’s conclusory assertions and failure to plead necessary details result in
a failure to state a claim. Accordingly, to the extent that Plaintiff seeks to plead
separate Section 1983 claims relating to the conditions of his confinement,
such claims are dismissed for failure to state a claim.
5. Plaintiff Has Failed to State a Claim for Retaliation
In Count Two, Plaintiff contends that his efforts to obtain redress for the
conditions of his confinement at MDC — through the grievance process and
through the instant lawsuit — led Defendants to retaliate against him. (TAC 8-

10). Construing his claims liberally, the Court understands Plaintiff to allege
that after being moved to GRVC in November 2020, he experienced similar
problems with “no services, sick call or medical privacy and confidentiality.”
(Id. at 9). Within a few days of his arrival at GRVC, Warden Dunbar had
modified the CLO for lockdown units at GRVC so that it was similar to the
MDC CLO; a few days after that modification, prison officials “stopped”
Plaintiff’s mail, family visits, and religious services. (Id.). Worse yet, Plaintiff
was wrongly identified as a gang member, which resulted in further

restrictions. (Id. at 9-10). Only after Plaintiff filed a grievance concerning the
gang designation was it removed. (Id. at 9; id. at Ex. D (Inmate Statement
Form reflecting submission of grievance on November 12, 2020, along with
Disposition Form reflecting December 1, 2020 proposal to resolve grievance by
removing Plaintiff’s gang member designation and December 10, 2020
acceptance of proposal by Plaintiff)). Given the substance of Plaintiff’s
retaliation allegations, the only Defendant to whom they could pertain is
Defendant Dunbar.8

8 Plaintiff suggests that Defendants Gornish and Flores-Clemente continued to follow the
medical care protocols of the MDC CLO even after “several grievances and complaints”
(TAC 7), but the Court does not believe Plaintiff to be making a retaliation claim about
such conduct, nor does it find that their adherence to pre-existing directives occurred
because of any protected conduct on Plaintiff’s part.
“To prevail on a First Amendment retaliation claim, an inmate must
establish [i] that the speech or conduct at issue was protected, [ii] that the
defendant took adverse action against the plaintiff, and [iii] that there was a

causal connection between the protected conduct and the adverse action.”
Hayes v. Dahlke, 976 F.3d 259, 272 (2d Cir. 2020) (quoting Holland v. Goord,
758 F.3d 215, 225 (2d Cir. 2014)); accord Espinal v. Goord, 558 F.3d 119, 128
(2d Cir. 2009). “An inmate bears the burden of showing that ‘the protected
conduct was a substantial motivating factor in the prison official[’s] disciplinary
decision.’” Holland, 758 F.3d at 225-26 (quoting Graham v. Henderson, 89
F.3d 75, 79 (2d Cir. 1996)); see also Brandon v. Kinter, 938 F.3d 21, 40 (2d Cir.
2019) (“[M]ere negligence is not enough to support a claim of retaliation. A

plaintiff must show some evidence of retaliatory intent to cause the adverse
effect.” (citation omitted)). If this showing is made, the defendant then bears
the burden of establishing that the disciplinary action would have occurred
“even absent the retaliatory motivation.” Holland, 758 F.3d at 226 (alteration
omitted) (quoting Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002)).
The Second Circuit has cautioned that “because we recognize both the
near inevitability of actions by prison officials to which prisoners will take
exception and the ease with which claims of retaliation may be fabricated, we

examine prisoners’ claims of retaliation with skepticism and particular care.”
Hayes, 976 F.3d at 272 (alteration and citation omitted). For this reason, First
Amendment retaliation claims must be “supported by specific and detailed
factual allegations” and may not be stated “in wholly conclusory terms.” Dolan
v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (citation omitted); see also
Graham, 89 F.3d at 79 (“A complaint of retaliation that is wholly conclusory
can be dismissed on the pleadings alone.”).

Plaintiff’s filing of grievances and of the instant litigation all qualify as
“protected conduct” for retaliation purposes. See Tirado v. Shutt, No. 13 Civ.
2848 (LTS) (AJP), 2015 WL 774982, at *9 n.9 (S.D.N.Y. Feb. 23, 2015)
(collecting cases), report and recommendation adopted in part, No. 13 Civ. 2848
(LTS) (AJP), 2015 WL 4476027 (S.D.N.Y. July 22, 2015). Defendants argue,
however, that Plaintiff has failed to demonstrate an adverse action, inasmuch
as his erroneous designation as a gang member by prison officials was of
limited duration and was corrected shortly after Plaintiff filed his grievance.

(Def. Br. 11). See Davis, 320 F.3d at 353 (distinguishing “retaliatory conduct
that would deter a similarly situated individual of ordinary firmness” from de
minimis conduct, and noting that only the former constitutes an adverse
action).
The Court understands Plaintiff’s retaliation claims to go beyond the
gang designation incident, but concludes ultimately that none of the claims is
adequately stated. To begin, certain events outlined by Plaintiff in the TAC do
not amount to adverse actions. First, Warden Dunbar’s modification of the

GRVC CLO for lockdown units cannot be deemed to be an adverse action
against Plaintiff, inasmuch as it pertained, by its terms, to all inmates at GRVC
in court-ordered lockdown status. In addition, as noted earlier, nothing in the
TAC suggests that the modification was motivated by Plaintiff’s conduct.
Second, Plaintiff’s erroneous designation as a gang member does not constitute
an adverse action because it was a de minimis error that was promptly
corrected within two weeks of the processing of Plaintiff’s grievance, and

because there is no indication that Warden Dunbar was involved in the
designation. And while it is arguable that certain other events alleged by
Plaintiff, such as the stoppage of mail and visits after November 11, 2020,
could suffice as adverse actions, they do not suffice as pleaded because (i) they
do not allege any conduct by Warden Dunbar, and (ii) certain restrictions on
mail, visitation, religious services, and the like are expressly provided for in the
GRVC CLO. (See TAC, Ex. B).9
Even were the Court to find that Plaintiff had adequately pleaded one or

more adverse actions, his retaliation claims would still fail because he fails to
allege a causal connection between his protected conduct and any adverse
action. In order to show causation, Plaintiff’s allegations must be “sufficient to
support the inference that the speech played a substantial part in the adverse
action.” Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000) (internal
quotation marks and citation omitted). Factors considered in evaluating
whether causation existed include: (i) the temporal proximity of the protected
conduct and the disciplinary action; (ii) the inmate’s prior good disciplinary

record; (iii) vindication at a hearing on the matter; and (iv) statements by the

9 The Second Circuit has held that a prison transfer may constitute an adverse action.
See Davis v. Kelly, 160 F.3d 917, 920 (2d Cir. 1998) (observing that “prison authorities
may not transfer an inmate in retaliation for the exercise of constitutionally protected
rights”). However, Plaintiff does not allege that his transfer to GRVC was retaliatory.
defendant regarding his motive for disciplining the plaintiff.” Colon v. Coughlin,
58 F.3d 865, 872-73 (2d Cir. 1995), abrogated on other grounds by Tangreti,
983 F.3d 609. The Second Circuit has made clear that “temporal proximity

alone … is insufficient to establish a retaliation claim.” Ford v. Deacon, 793 F.
App’x 13, 16 (2d Cir. 2019) (summary order); see also Vazquez v. City of New
York, No. 21 Civ. 1573 (PAE), 2021 WL 1966397, at *7 (S.D.N.Y. May 17, 2021)
(“A plaintiff can establish a causal connection giving rise to an inference of
retaliation, for example, by showing that the protected activity was ‘very close’
in time to the adverse action.” (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.
268, 273-74 (2001); Gayle v. Gonyea, 313 F.3d 677, 683 (2d Cir. 2002))).
Plaintiff offers nothing but temporal proximity, and even in this area he

comes up short. According to Plaintiff, the retaliatory conduct he experienced
at GRVC was a consequence of his grievances and his federal complaint. But
the only grievances for which he provides dates are attached to his First and
Third Amended Complaints. Attached to the First Amended Complaint is a
grievance form dated November 6, 2019, i.e., some two years before the alleged
retaliatory conduct. (Dkt. #26 at 4). Attached to the TAC is the grievance form
dated November 12, 2020, which is one day after the “stopp[age]” of services
alleged in the TAC. In any event, that grievance was resolved in Plaintiff’s favor

to end the ostensibly retaliatory conduct of being falsely identified as a gang
member. (See TAC, Ex. D). Similarly, Plaintiff’s federal complaint was filed
nearly one year prior to the retaliatory conduct he alleges, and the operative
complaint was, of necessity, filed after the retaliatory conduct it alleges. (Dkt.
#2). Accordingly, Plaintiff has not alleged retaliation under Section 1983, and
the Court dismisses these claims.10
6. Plaintiff Has Failed to Allege Municipal Liability
Because Plaintiff has failed to plead an underlying constitutional

violation against any of the individual Defendants, he has necessarily failed to
plead a claim for municipal liability under Monell. See City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986) (“[The City agencies] were sued only because
they were thought legally responsible for [the officer’s] actions; if the latter
inflicted no constitutional injury on respondent, it is inconceivable that
petitioners could be liable to respondent.”); see also Segal v. City of New York,
459 F.3d 207, 219 (2d Cir. 2006) (“Because the district court properly found no
underlying constitutional violation, its decision not to address the municipal

defendants’ liability under Monell was entirely correct.”). Accordingly, the
Court dismisses the claims against the City.
7. The Court Will Not Exercise Supplemental Jurisdiction over
Any State-Law Claims
The Court understands Plaintiff to bring only federal claims in this
lawsuit; Defendants believe, to the contrary, that Plaintiff also brings state-law
claims for negligence and medical malpractice, and requests that this Court
decline to exercise supplemental jurisdiction over them. (Def. Br. 14-15).

10 Because Plaintiff has failed to state a Section 1983 claim against any of the individual
Defendants, the Court does not proceed to address Defendants’ arguments regarding
the applicability of qualified immunity. (See Def. Br. 12). See generally Rivas-Villegas
v. Cortesluna, 142 S. Ct. 4, 7 (2021) (discussing principles of qualified immunity).
A district court may decline to exercise supplemental jurisdiction over
state-law claims when it “has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims

have dropped out of the lawsuit in its early stages and only state-law claims
remain, the federal court should decline the exercise of jurisdiction.” Carnegie-
Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Having dismissed the
federal claims over which the Court has original jurisdiction, the Court declines
to exercise its supplemental jurisdiction over any state-law claims Plaintiff may
be asserting. See Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.
2006) (“Subsection (c) of § 1367 ‘confirms the discretionary nature of
supplemental jurisdiction by enumerating the circumstances in which district

courts can refuse its exercise.’” (quoting City of Chicago v. Int’l Coll. of
Surgeons, 522 U.S. 156, 173 (1997))).
8. The Court Will Not Grant Plaintiff Leave to Amend
The one remaining issue concerns amendment of Plaintiff’s pleadings.
“Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a court
‘should freely give leave [to amend] when justice so requires.’” Gorman v.
Covidien Sales, LLC, No. 13 Civ. 6486 (KPF), 2014 WL 7404071, at *2 (S.D.N.Y.
Dec. 31, 2014) (quoting Fed. R. Civ. P. 15(a)(2)). Consistent with this liberal
amendment policy, “[t]he rule in this Circuit has been to allow a party to

amend its pleadings in the absence of a showing by the nonmovant of prejudice
or bad faith.” Id. (quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d
Cir. 1993)). The Second Circuit has explained that, “[a] pro se complaint
should not be dismissed without the Court’s granting leave to amend at least
once when a liberal reading of the complaint gives any indication that a valid
claim might be stated.” Grullon v. City of New Haven, 720 F.3d 133, 139 (2d

Cir. 2013) (internal quotation marks and alterations omitted) (quoting Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010)). That being said, “it remains
‘proper to deny leave to replead where ... amendment would be futile.’” Gorman,
2014 WL 7404071, at *2 (quoting Hunt v. All. N. Am. Gov’t Income Tr., Inc., 159
F.3d 723, 728 (2d Cir. 1998)).
Plaintiff amended his pleadings three times after a court conference
during which his pleading deficiencies were discussed at length. (Dkt. #22).
See Foman v. Davis, 371 U.S. 178, 182 (1962) (holding that “repeated failure to

cure deficiencies by amendments previously allowed” is a basis to deny leave to
amend). He has not sought leave to amend his pleadings further in response to
Defendants’ motion — indeed, he has not responded to Defendants’ motion at
all. Even if Plaintiff had requested leave, the Court concludes that any
amendment would be inappropriate on this record and futile. Whether cast as
discrete violations or incidents of retaliation, the incidents described by
Plaintiff do not suffice to support a claim under Section 1983. Accordingly,
the Court declines to grant Plaintiff leave to amend.
CONCLUSION
For the foregoing reasons, the Court grants Defendants’ motion to
dismiss the federal claims in this case with prejudice. The Court declines to
exercise jurisdiction over any state-law claims that Plaintiff intended to bring in
the TAC. The Clerk of Court is directed to terminate all pending motions,
adjourn all remaining dates, and close this case.
The Clerk of Court is further directed to mail a copy of this Opinion and
Order to Plaintiff at the following address:
Randy Swinson,
B&C No. 3492103407
NYSID No. 062883292
George R. Vierno Center (GRVC)
09-09 Hazen Street
East Elmhurst, New York 11370.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from
this Opinion and Order would not be taken in good faith, and therefore IFP
status is denied for the purpose of an appeal. See Coppedge v. United States,
369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: January 14, 2022 Kathe fall. flr
New York, New York
KATHERINE POLK FAILLA
United States District Judge

33

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10337947. Public record. Not legal advice.