# Amaker v. Gerbing

> District Court, S.D. New York · February 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10338708

## Case

- **Court:** District Court, S.D. New York
- **Decided:** February 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10338708

## How later opinions describe it (automated extraction)

- holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ANTHONY D. AMAKER,
MEMORANDUM
Plaintiff, OPINION AND ORDER

-against- 17-CV-03520 (PMH)
K. GERBING, et al.
Defendants.
PHILIP M. HALPERN, United States District Judge:
Anthony D. Amaker (“Plaintiff”), proceeding pro se, asserts claims under 42 U.S.C. §
1983 for violations of his rights under the First and Fourteenth Amendments, and invokes the
Americans with Disabilities Act (“ADA”), against K. Gerbing (“Gerbing”), P. Early (“Early”), S.
Roberts (“Roberts”), S. Bennett (“Bennett”), P. Wolff (“Wolff”), Dr. Gusman (“Gusman”), C.O.
J. Rio (“Rio”), D. Venetozzi (“Venettozzi”), C.O. K. Barber (“Barber”), Dep. Comm. Anthony J.
Annucci (“Annucci”), Joseph Bellnier (“Bellnier”), and Dep. Comm. Jefferey McCoy
(“McKoy,” and collectively, “Defendants”).1
Gerbing, Wolff, Venettozzi, Annucci, Bellnier, and McKoy (the “Represented
Defendants”) filed a motion to dismiss the Amended Complaint under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6) on July 2, 2021. (Doc. 40; Doc. 41, “Def. Br.”). Plaintiff’s
opposition was due on August 6, 2021. (Doc. 38). The docket indicates that a copy of the Court’s
Order setting the briefing schedule was transmitted electronically to Plaintiff contemporaneously
with its entry. (See Doc. 16 (Plaintiff’s consent to electronic service)). On July 2, 2021, the
Represented Defendants filed a declaration of service indicating service of the motion papers and

1 The Court’s references to “Venettozzi” and “McKoy” differ from Plaintiff’s pleadings with respect to
the spelling of those individuals’ names so as to correct the spelling as indicated in the Represented
Defendants’ briefing.
other associated documents on Plaintiff. (Doc. 40-1). Plaintiff did not file opposition papers. On
August 23, 2021, the Court sua sponte extended Plaintiff’s time to oppose the motion to
September 17, 2021, warned Plaintiff that no further extensions would be granted, and cautioned
that if Plaintiff failed to file opposition by September 17, 2021, the motion would be deemed

fully submitted and unopposed. (Doc. 43). Plaintiff thereafter timely sought two extensions of
the time to oppose the Represented Defendants’ motion, both of which the Court granted,
extending Plaintiff’s time to oppose to November 5, 2021. (Docs. 44-47). On December 3, 2021,
almost one month after the deadline expired, Plaintiff sought another extension of time to file his
opposition. (Docs. 49, 50). The Court granted Plaintiff’s request, warned Plaintiff that no further
extensions would be granted, and cautioned that if Plaintiff failed to file opposition by January
20, 2022, the motion would be deemed fully submitted and unopposed. (Doc. 51). Plaintiff did
not file opposition papers.
On February 11, 2022, the Court received Plaintiff’s motion dated January 31, 2022,
seeking a fifth extension of time to oppose the Represented Defendants’ motion. (Docs. 53, 54).

Because the Court had explicitly warned Plaintiff of the consequences of failure to timely file his
opposition and that no further extensions would be granted; and because the application for a
fifth extension was made well after the expiration of the deadline to file opposition, the Court
DENIES the request (Doc. 53). Accordingly, the Court deems the Represented Defendants’
motion fully submitted and ripe for adjudication.
For the reasons set forth below, the Represented Defendants’ motion is GRANTED.2

2 There is no indication that Early, Roberts, Bennett, Gusman, Rio, and Barber have been served.
Nevertheless, the Court considers the viability of federal claims for relief against them as well by
operation of 28 U.S.C. § 1915(e)(2)(B). See Williams v. Novoa, No. 19-CV-11545, 2022 WL 161479, at
*10-12 (S.D.N.Y. Jan. 18, 2022).
BACKGROUND
Plaintiff was incarcerated at Bare Hill Correctional Facility (“Bare Hill”) when he
commenced the instant action in 2017 alleging claims arising at Bare Hill and Otisville
Correctional Facility (“Otisville”). (Doc. 2). Because Plaintiff was disqualified under 28 U.S.C. §
1915(g) from proceeding in forma pauperis as a prisoner, the Court dismissed this action without

prejudice to reinstatement following payment of the filing fee. (Doc. 4). On August 26, 2019,
after Plaintiff paid the filing fee and filed a motion to reinstate, Judge Stanton issued an Order
reopening the action for good cause shown. (Doc. 12). On October 3, 2019, Judge Stanton issued
an Order severing Plaintiff’s claims arising at Bare Hill and transferring those claims to the
United States District Court for the Northern District of New York. (Doc. 13).3
On October 17, 2019, Judge Stanton, after screening Plaintiff’s Complaint under 28
U.S.C. § 1915A(a), issued an Order to Amend, which carefully and thoroughly discussed the
deficiencies in Plaintiff’s pleading. (Doc. 14, “Prior Ord.”).4 The Order to Amend warned that if
Plaintiff failed to file an amended complaint in compliance with the standards described therein
within 60 days of the date of the Order, absent good cause, the Complaint would be dismissed

for failure to state a claim upon which relief may be granted. (Id. at 18). Plaintiff thereafter
sought and was granted additional time to file an amended complaint. (Docs. 15, 17).
On January 13, 2020, Plaintiff filed the Amended Complaint. (Doc. 18, “Am. Compl.”).5
The allegations in the Amended Complaint are nearly identical to the original Complaint. In fact,

3 The severed claims were opened there and have been proceeding under docket number 19-CV-01253
(N.D.N.Y.).

4 The Order to Amend is available on commercial databases. See Amaker v. Gerbing, No. 17-CV-03520,
2019 WL 5260762 (S.D.N.Y. Oct. 17, 2019). However, for ease of reference, the Court cites herein the
copy of the Order to Amend filed on the docket.

5 Citations to the Amended Complaint correspond to the pagination generated by ECF.
there are but five new allegations in the Amended Complaint; otherwise, the pleadings are
identical. The Court thus assumes the parties’ familiarity with the factual allegations as laid out
in the Order to Amend and incorporates any additional factual allegations where appropriate
infra.

STANDARD OF REVIEW
I. Federal Rule of Civil Procedure 12(b)(1)
“Federal courts are courts of limited jurisdiction, and Rule 12(b)(1) requires dismissal of
an action ‘when the district court lacks the statutory or constitutional power to adjudicate it.’”
Schwartz v. Hitrons Sols., Inc., 397 F. Supp. 3d 357, 364 (S.D.N.Y. 2019) (quoting Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000)). “The party invoking the Court’s jurisdiction
bears the burden of establishing jurisdiction exists.” Hettler v. Entergy Enters., Inc., 15 F. Supp.
3d 447, 450 (S.D.N.Y. 2014) (citing Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009)).
When deciding a Rule 12(b)(1) motion, “the Court ‘must accept as true all material facts alleged
in the complaint and draw all reasonable inferences in the plaintiff’s favor.’” Id. (quoting

Conyers, 558 F.3d at 143); see also Doe v. Trump Corp., 385 F. Supp. 3d 265, 274 (S.D.N.Y.
2019).
When a defendant seeks dismissal under Rule 12(b)(1) “as well as on other grounds, the
court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for
lack of subject matter jurisdiction, the accompanying defenses and objections become moot and
do not need to be determined.” Saint-Amour v. Richmond Org., Inc., 388 F. Supp. 3d 277, 286
(S.D.N.Y. 2019) (quoting United States v. New York City Dep’t of Hous., Pres. & Dev., No. 09-
CV-06547, 2012 WL 4017338, at *3 (S.D.N.Y. Sept. 10, 2012)).
II. Federal Rule of Civil Procedure 12(b)(6)
A Rule 12(b)(6) motion enables a court to dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). The factual allegations
pled “must be enough to raise a right to relief above the speculative level . . . .” Twombly, 550
U.S. at 555.
“When there are well-ple[d] factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at

679. Thus, the Court must “take all well-ple[d] factual allegations as true, and all reasonable
inferences are drawn and viewed in a light most favorable to the plaintiff[].” Leeds v. Meltz, 85
F.3d 51, 53 (2d Cir. 1996). The presumption of truth, however, “‘is inapplicable to legal
conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting
Iqbal, 556 U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than
labels and conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.
A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to
less stringent standards than formal pleadings drafted by lawyers . . . .” Estelle v. Gamble, 429
U.S. 97, 106 (1976) (internal quotation marks omitted). Because pro se plaintiffs “‘are often
unfamiliar with the formalities of pleading requirements,’ courts must ‘apply a more flexible
standard in determining the sufficiency of a pro se [complaint] than they would in reviewing a
pleading submitted by counsel.’” Smith v. U.S. Dep’t of Just., 218 F. Supp. 2d 357, 361

(W.D.N.Y. 2002) (quoting Platsky v. Cent. Intell. Agency, 953 F.2d 26, 28 (2d Cir. 1991)).
However, while “[p]ro se complaints are held to less stringent standards than those drafted by
lawyers, even following Twombly and Iqbal,” dismissal is “appropriate where a plaintiff has
clearly failed to meet minimum pleading requirements.” Thomas v. Westchester Cty., No. 12-
CV-06718, 2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013) (internal citations omitted); see
also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro se case . . . although a
court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable
to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” (internal quotation marks omitted)). Therefore,
while the Court must “draw the most favorable inferences that [a plaintiff’s] complaint supports,

[it] cannot invent factual allegations that [a plaintiff] has not pled.” Chappius, 618 F.3d at 170.
The Court does, however, have a duty to interpret “the pleadings of a pro se plaintiff liberally
and interpret them ‘to raise the strongest arguments that they suggest.’” McPherson v. Coombe,
174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Moreover, when deciding an unopposed motion to dismiss (as is the case here with
respect to the Represented Defendants’ motion), “the Court is to ‘assume the truth of a
pleading’s factual allegations and test only its legal sufficiency. Thus, although a party is 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.’” Law v. Corizon Med. Servs., No. 13-CV-05286, 2014
WL 2111675, at *3 (S.D.N.Y. May 12, 2014) (quoting McCall v. Pataki, 232 F.3d 321, 322-23
(2d Cir. 2000)). It is, therefore, appropriate for the Court to test the sufficiency of the Amended
Complaint even without the benefit of formal opposition to the motion.

ANALYSIS
I. Rule 12(b)(1): Lack of Subject-Matter Jurisdiction
The Court, as guided by precedent, turns first to the Represented Defendants’ arguments
regarding the lack of subject-matter jurisdiction and dismissal mandated under Rule 12(b)(1).
A. Eleventh Amendment Immunity
Insofar as Plaintiff seeks relief under 42 U.S.C. § 1983, the Eleventh Amendment directs
that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. This language
bars suits, even those arising under federal law, against a state by one of its own citizens. Woods

v. Rondout Valley Centr. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (citing Hans
v. Louisiana, 134 U.S. 1, 15 (1890)). “[A]s a general rule, state governments may not be sued in
federal court unless they have waived their Eleventh Amendment immunity, or unless Congress
has abrogated the states’ Eleventh Amendment immunity when acting pursuant to its authority
under Section 5 of the Fourteenth Amendment.” Nelkenbaum v. Jordy, No. 19-CV-07953, 2020
WL 7630354, at *2 (S.D.N.Y. Dec. 22, 2020) (quoting Gollomp v. Spitzer, 568 F.3d 355, 366
(2d Cir. 2009) (alteration in original)). To that point, it is well-settled that “New York has not
waived its sovereign immunity in § 1983 lawsuits, nor has Congress abrogated the State’s
immunity.” Phillips v. New York, No. 13-CV-00927, 2013 WL 5703629, at *3 (N.D.N.Y. Oct.
17, 2013) (citing Vincent v. Yelich, 718 F.3d 157, 177 (2d Cir. 2013)); see also Keitt v. New York
City, 882 F. Supp. 2d 412, 424 (S.D.N.Y. 2011) (“Magistrate Judge Freeman properly concluded
that Keitt’s Section 1983, 1985, and 1986 claims against the State of New York and its agencies
are barred by the [Eleventh] Amendment.”). “[C]laims for damages under Title II of the ADA

can proceed . . . when a Plaintiff states a claim for a Fourteenth Amendment violation, . . . such
as where the plaintiff can establish that the Title II violation was motivated by either
discriminatory animus or ill will due to disability.” (Prior Ord. at 12 (internal citations omitted)).
Consequently, because the Eleventh Amendment deprives this Court of subject-matter
jurisdiction, the claims for relief under 42 U.S.C. § 1983 for violation of the First Amendment
are dismissed under Rule 12(b)(1) to the extent they seek relief against Defendants in their
official capacities. This result does not affect the 42 U.S.C. § 1983 claims against them in their
individual capacities, or to the extent Plaintiff states a claim for a Fourteenth Amendment
violation giving rise to a claim under the ADA, which the Court considers infra.
II. Rule 12(b)(6): Failure to State a Claim Under § 1983

Plaintiff brings claims under 42 U.S.C. § 1983. That section provides, in pertinent part,
that “[e]very person who, under color of any statute . . . subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured . . . .” 42 U.S.C. § 1983. “[T]his
language . . . creates a mechanism by which individuals can vindicate the violation of rights
secured elsewhere.” Linares v. Annucci, No. 19-CV-11120, 2021 WL 2689736, at *6 (S.D.N.Y.
June 30, 2021) (quoting Santucci v. Levine, No. 17-CV-10204, 2021 WL 76337, at *3 (S.D.N.Y.
Jan. 8, 2021) (first alteration in original)). The alleged violations here stem principally from the
First and Fourteenth Amendments.
A. Prerequisite of Personal Involvement
As a fundamental prerequisite “[t]o establish[ing] a § 1983 claim, a plaintiff must show
the defendants’ personal involvement in the alleged constitutional violation.” Boley v. Durets,
687 F. App’x 40, 41 (2d Cir. 2017) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).

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). Simply being a supervisor
is not enough to impute personal involvement onto a defendant; liability exists only where 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). The
Amended Complaint fails to implicate Annucci, Bellnier, McKoy, and Venettozzi in any alleged
constitutional violation. The Amended Complaint also fails to implicate any of the named
Defendants in a purported violation of Plaintiff’s First Amendment rights to freedom of religion.
With respect to Annucci, Bellnier, and McKoy, the Amended Complaint is devoid of any

allegations that these individuals were personally involved in violating Plaintiff’s rights. Other
than naming them as Defendants, there are no factual allegations found against them in the
Amended Complaint. As to Venettozzi, the only allegation against him is that Plaintiff appealed
the disciplinary determination to Venettozzi on the ground that Plaintiff was denied witnesses
and documents, but the appeal was denied.6 (Am. Compl. at 14). This allegation is insufficient to
establish personal involvement. Arriaga v. Otaiza, No. 20-CV-06992, 2021 WL 5449849, at *5
(S.D.N.Y. Nov. 19, 2021) (dismissing claims alleged against Venettozzi for lack of personal
involvement on the grounds that, inter alia, “review and affirmation of the disposition of

6 Even if Plaintiff’s allegations sufficiently alleged personal involvement by these Defendants, there is no
underlying constitutional violation that proceeds into discovery. (See discussion infra).
Plaintiff’s disciplinary hearing is distinct from the alleged underlying constitutional deprivation.”
(citing Ortiz v. Russo, No. 13-CV-05317, 2015 WL 1427247, at *14 (S.D.N.Y. Mar. 27, 2015))).
Any claims for relief pressed against Annucci, Bellnier, McKoy, and Venettozzi are,
accordingly, dismissed for lack of personal involvement.

The Amended Complaint is devoid of any allegations concerning any Defendant’s
involvement in a First Amendment denial of freedom of religion. The sole, conclusory allegation
that Plaintiff’s First Amendment rights were violated “during the transit between Fishkill C.F.
and Bare Hill C.F.” by being “denied two days of fasting meals and Sahor bags” (Am. Compl. at
17) does not implicate any Defendants named in this action. Accordingly, any such First
Amendment claim pressed against Defendants is dismissed for failure to allege personal
involvement in the alleged constitutional violation.
B. Claims for Relief Under the Fourteenth Amendment
Reading the Amended Complaint with the liberality required for pro se pleadings,
Plaintiff appears to allege claims under the Fourteenth Amendment for discrimination based on

disability and race and to enforce his procedural due process rights in connection with a
disciplinary proceeding at Otisville.
1. Discrimination Based on Disability and Race
The Order to Amend thoroughly discussed the standards applicable to Plaintiff’s claims
of discrimination based upon his disability and race, and applied those legal standards to the
allegations in the original Complaint when it determined that Plaintiff failed to adequately state a
claim for relief. (Prior Ord. at 7-11). Plaintiff, in the Amended Complaint, added only two
allegations relevant to those claims in his effort to cure the deficiencies cited by Judge Stanton.
As to his claim of disability discrimination, Plaintiff added the allegation that the policy
of limiting bus passes was “a violation to [his] health condition,” in that he worked in the gym as
a recreation aide and was therefore unable to use to the bus to get to his “work assignment,
commissary, yard, gym, religious services, school, counselor, visit and package room.” (Am.

Compl. at 5). However, aside from general allegations that other prisoners of a different race
were not given limitations on bus passes, Plaintiff fails to establish how he was treated
differently than others similarly situated and as a result of intentional or purposeful
discrimination due to a disability. Moreover, these additional allegations still do not negate the
policy’s rational basis nor its relation to the government’s legitimate interests. The allegations,
therefore, remain “insufficient to state a claim that the Executive Team’s policy of limiting bus
passes discriminated against disabled prisoners like him . . . in violation of Plaintiff’s right to
equal protection of the laws.” (Prior Ord. at 9).
With respect to Plaintiff’s race-based claim under the Equal Protection Clause, Plaintiff
added the allegation that “moving prisoners to the South from the North dorm . . . was only being

done to Black Prisoners,” that “White prisoners . . . claim[ed Gusman] did not change their bus
pass[es],” and that “Black prisoners with medical conditions were not allowed or being removed
from the bus pass . . . .” (Am. Compl. at 9-10). These allegations fail to implicate the purported
Executive Team members, Gerbing, Early, Roberts, and Bennett, in any intentional
discrimination against Plaintiff due to his race. The Amended Complaint, like the original
Complaint, simply does not provide enough facts to state a claim that other individuals of
different races were similarly situated but treated differently because of their race. As such, the
additional allegations remain insufficient to state a plausible claim that Gusman intentionally
discriminated against him based on his race. (Prior Ord. 10-11).
Accordingly, Plaintiff’s equal protection claims of discrimination on the basis of his
disability and race under the Fourteenth Amendment are dismissed.
2. Due Process in Disciplinary Proceedings
The Amended Complaint adds three allegations in support of Plaintiff’s claim that

Defendants deprived him of due process with respect to the Otisville disciplinary hearing. (See
Am. Compl. at 12, 14, 17). Specifically, Plaintiff adds that: (1) Bennett, as Hearing Officer,
failed to allow Plaintiff to call treating doctors as witnesses to probe his contentions concerning
the bus pass limitation which “allowed the misbehavior report to go untested, because Wolff
stated Dr. Gusman told him to retrieve my bus pass,” (id. at 12); (2) Bennett was not impartial
because, as Deputy Superintendent of Programs, she “was required to oversee the reasonable
accommodation application on the bus issue, . . . and blocked [Plaintiff] from revealing” that she
was a witness to the administration’s alleged desire to prevent Black prisoners from having bus
passes (id. 14); and (3) “Plaintiff suffered atypical and significant hardship in the 60 days[’]
sentence of Special Housing Unit [(“SHU”)] despite the reduction of 15 days, because he was

denied the rights to fair and impartial hearing officer, and the rights to call witnesses to transfer
him in retaliation for filing grievances and being on the ILC” (id. at 17).
The standards required to plausibly plead the deprivation of a liberty interest were set
forth in detail in the Order to Amend. (Prior Ord. at 13-14). Plaintiff’s new allegations fail to
cure the pleading deficiencies highlighted by Judge Stanton. Plaintiff still fails to allege that he
was deprived of a liberty interest; the conclusory allegation that he “suffered atypical and
significant hardship in the” 45-day SHU confinement (Am. Compl. at 17), coupled with his other
allegations that are identical to those alleged in the original Complaint, are “insufficient to allege
that Plaintiff ‘endured unusual SHU conditions.’” (Prior Ord. at 14 (quoting Palmer v. Richards,
364 F.3d 60, 65-66 (2d Cir. 2004))). Plaintiff’s new allegations against Bennett likewise fail to
remedy the pleading deficiencies of a due process claim. Were the Court to assume that Plaintiff
had sufficiently pled a liberty interest—which he has not—then the same issues plaguing
Plaintiff’s original Complaint doom his Amended Complaint. (Prior Ord. at 14-15). His new

allegations do not demonstrate how the treating doctors’ testimony would be relevant to the
conduct underlying Plaintiff’s disciplinary charges and therefore Plaintiff still has not adequately
alleged that he was denied a “reasonable opportunity” to call witnesses. Plaintiff’s new
allegations against Bennett do not support a claim that he was denied an impartial hearing officer
as it appears the disciplinary charges involved Plaintiff’s behavior at the clinic.
Accordingly, Plaintiff fails to state a claim under § 1983 for the denial of procedural due
process.
C. Claims for Relief Under the First Amendment
Plaintiff, in the Amended Complaint, continues to press a claim for retaliation against Rio
but adds only a single allegation that does not cure the deficiencies highlighted in the Order to

Amend. (Prior Ord. at 15-16). Plaintiff now also claims that Rio “planted” another inmate’s
“hotpot” in Plaintiff’s belongings. (Am. Compl. at 7). Plaintiff still does not describe the nature
of the disciplinary charge lodged against him, for example, or add any factual support for a claim
that Rio retaliated against him with the “hotpot” for exercising a constitutional right. For all of
the reasons identified in the Order to Amend, Plaintiff’s allegations fail to state a claim that Rio
filed a false misbehavior report or planted contraband in Plaintiff’s belongings in retaliation for
Plaintiff’s exercise of his constitutional rights. (Prior Ord. at 16).
Moreover, to the extent that Plaintiff alleges that he was retaliated against for filing
grievances, (Am. Compl. at 17-18); that his transfer from Otisville was a “retaliatory transfer” to
“be removed from the ILC,” (id. at 13-14, 16); or that the guilty disposition from Plaintiff’s
disciplinary hearing was “in retaliation for filing grievances on the reasonable accommodation
and seeking the Nation of Islam clerk position” (id. at 13), these allegations are speculative,
conclusory, and fail to sufficiently state a claim for relief. See Keesh v. Quick, No. 19-CV-08942,

2021 WL 639530, at *10 (S.D.N.Y. Feb. 17, 2021) (“Where, as here, the plaintiff alleges the
ultimate fact of retaliation in a conclusory and speculative manner, he fails to state a claim for
retaliation.” (internal citation omitted)).
Plaintiff states in the Amended Complaint, as in the original Complaint, that he “has
suffered from the violation of his First Amendment rights by having his religious practice of
fasting for Ramadan violated during the transit between Fishkill C.F. and Bare Hill C.F.” by
being “denied two days of fasting meals and Sahor bags.” (Am. Compl. at 17). These claims
concerning First Amendment violations at Bare Hill, however, were not properly joined in this
action under Federal Rule of Civil Procedure 20(a), were severed and transferred to the Northern
District of New York where they are proceeding in a separate action, and only claims arising at

Otisville were permitted to proceed in this action. (Doc. 13). Even were the Court to consider the
Amended Complaint as raising a First Amendment claim in this action, Plaintiff does not press
those allegations against any of Defendants in this action.
Accordingly, Plaintiff’s claims under the First Amendment are dismissed.
III. Rule 12(b)(6): Failure to State a Claim Under the ADA
Plaintiff, through his Amended Complaint, has not cured the deficiencies associated with
his claims under the ADA as identified in the Order to Amend. Because Title II of the ADA
applies to public entities, any ADA claim against Defendants in their individual capacities must
be dismissed. (Prior Ord. at 11 (citing Green v. City of N.Y., 465 F.3d 65, 76 (2d Cir. 2006); 42
U.S.C. § 12131(1))). To the extent Plaintiff presses any claims for injunctive relief under the
ADA in connection with the bus passes at Otisville, as discussed in the Order to Amend, they are
moot because Plaintiff was released from custody. (Am. Compl. at 2).7 Although damages are in
some circumstances available on an official-capacity claim, here, Plaintiff’s claims for damages

under the ADA are barred because, as discussed supra, Plaintiff has not stated a claim for a
Fourteenth Amendment violation showing the purported ADA violation was motivated by either
discriminatory animus or ill will due to disability. (Prior Ord. at 12).
Moreover, other than the new allegation that generally references Plaintiff’s herniated
discs and torn meniscus in both knees (Am. Compl. at 5), Plaintiff fails to show he is even a
“qualified individual with a disability” under the ADA. (Prior Ord. at 11 (citing 42 U.S.C. §
12132)); Powell v. Nat’l Bd. of Med. Examiners, 364 F.3d 79, 85 (2d Cir. 2004). Plaintiff’s ADA
claims thus fail as a matter of law and, accordingly, are dismissed.8
CONCLUSION
For the foregoing reasons, the Represented Defendants’ motion to dismiss is GRANTED

and Plaintiff’s claims against them are DISMISSED. Defendants Early, Roberts, Bennett,
Gusman, Rio, and Barber are DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii).

7 A search on the DOCCS inmate lookup website reveals that Plaintiff was released and paroled on
February 1, 2018 after serving approximately 28 years for a Murder in the Second Degree conviction, and
was discharged from parole on February 1, 2021. See Simmonds v. Family Dollar Store, No. 18-CV-
01241, 2018 WL 5447046, at *1 n.1 (E.D.N.Y. Oct. 25, 2018) (“The Court may take judicial notice of
Plaintiff’s DOCCS inmate lookup information.”); see also Jackson v. Sullivan Cty., No. 16-CV-03673,
2018 WL 1582506, at *5 n.8 (S.D.N.Y. Mar. 27, 2018) (“Courts in this district have taken judicial notice
of information obtained from online inmate tracking services.” (internal quotation marks omitted));
Rosario v. New York City, No. 12-CV-04795, 2013 WL 2099254, at *1 n.1 (S.D.N.Y. May 15, 2013).

8 To the extent Plaintiff also presses his claims under Section 504 of the Rehabilitation Act, the
allegations are insufficient for the same reasons as his ADA claims. See Hilton v. Wright, 928 F. Supp. 2d
530, 556-57 (N.D.N.Y. 2013) (“When brought together, claims under Title II and Section 504 may be
treated identically.”)
Although “courts generally grant a pro se plaintiff leave to amend a complaint to cure its
shortcomings, . . . leave to amend may be denied if the plaintiff has already been given an
opportunity to amend but has failed to cure the complaint’s deficiencies.” Michel v. Orange Cty.,
New York, No. 21-CV-09406, 2022 WL 103581, at *3 (S.D.N.Y. Jan. 11, 2022). Moreover,
“leave to amend is not necessary when it would be futile.” Reed v. Friedman Met. Corp., 541 F.
App’x 40, 41 (2d Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
Having been given the opportunity to cure the Complaint’s various deficiencies, specifically and
fully identified in Judge Stanton’s Order to Amend, and having failed to do so, the Court
dismisses the claims alleged in the Amended Complaint with prejudice as any amendment would
be futile.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum
Opinion and Order would not be taken in good faith, and therefore in forma pauperis status is
denied for the purpose of an appeal. Cf Coppedge v. United States, 369 U.S. 438, 444-45 (1962)
(holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous
issue).
The Clerk of the Court is respectfully directed to terminate the motions pending at Docs.
40 and 53 and to close this case.

Dated: White Plains, New York
February 14, 2022

Philip M. Halpern
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10338708. Public record. Not legal advice.