Shtilman v. Baker

USDC SDNY

DOCUMENT

UNITED STATES DISTRICT COURT ELECTRONICALLY FILED

SOUTHERN DISTRICT OF NEW YORK DOC #:

DATE FILED: _ 06/27/2022

SERGEY SHTILMAN,

Plaintiff,

-against- No. 14 Civ. 6589 (NSR)

OPINION AND ORDER

MARVAT MAKRAM and ROBERT F.

CUNNINGHAM

Defendants.

NELSON S. ROMAN, United States District Judge

Pro se Plaintiff Sergey Shtilman (‘Plaintiff’) commenced this action against multiple

correctional facility employees on August 18, 2014, pursuant to 42 U.S.C. § 1983 (“Section 1983”)

for alleged Fourth, Eighth, and Fourteenth Amendment violations. (See ECF No. 2.) Plaintiff

subsequently amended her! pleadings four times. Plaintiff filed her Fifth Amended Complaint (the

“SAC”), which is the operative complaint, on October 12, 2018. (See ECF No. 76.) In her 5AC,

Plaintiff asserts Section 1983 claims against Defendants Dr. Mervat Makram (“Dr. Makram’’) and

Robert Cunningham (“Cunningham”), former Superintendent at Woodbourne Correctional

Facility (collectively, the “Defendants”). Specifically, Plaintiff alleges three claims: an Equal

Protection claim against Dr. Makram and two deliberate indifference claims under the Eighth

Amendment against Dr. Makram and Cunningham each. (/d. at 2.)

Presently before the Court is Defendants’ motion to dismiss Plaintiff's SAC under Federal

Rule of Civil Procedure 12(b)(6). (ECF No. 93.) For the following reasons, Defendants’ motion to

dismiss is GRANTED.

' Plaintiff self-identifies as a transgender female and has been incarcerated in various male prisons within

the state of New York. (See ECF No. 25 at 1.)

BACKGROUND

I. Factual Background

Plaintiff was incarcerated at Elmira Correctional Facility, but was released on January 18,

2022, on parole and currently resides in Smallwood, New York. (See ECF No. 97.) The following

facts are derived from Plaintiff’s 5AC and the exhibits attached thereto. These facts are assumed

to be true and construed in the light most favorable to the pro se Plaintiff for purposes of this

motion.

The incidents referenced in her 5AC occurred when Plaintiff was incarcerated at

Woodbourne Correctional Facility (“Woodbourne”) between April 16, 2014, and January 1, 2016.

(5AC ¶ 1.) On May 29, 2014, Plaintiff attended sick call requesting a feed-in cell permit given her

neurogenic bladder disorder diagnosis and history of incontinence. (Id. ¶ 4.) Plaintiff provided a

doctor’s letter, dated March 30, 1993, confirming her medical condition. (Id. ¶ 5.) Woodbourne’s

medical staff denied the feed-in cell permit request, prompting Plaintiff to file a grievance on June

2, 2014. (Id. ¶¶ 6–7.) Woodbourne’s Inmate Grievance Resolution Committee (“IGRC”) denied

the grievance and Plaintiff appealed this denial to Cunningham. (Id. ¶¶ 8–9.) Cunningham found

that “there [was] no medical or psychological need for grievant to be fed in cell.” (Id. ¶ 9.) Plaintiff

appealed Cunningham’s decision, which the Central Office Review Committee (“CORC”)

reviewed and denied. (Id.) As a result, Plaintiff was forced to choose between “missing numerous

meals and remaining in her housing unit where a bathroom was readily available, or attending the

mess hall and being subjected to painful humiliation and derision when embarrassing accidents

occurred on account of her serious medical condition.” (Id. ¶ 10.)

On August 14, 2014, Plaintiff went to sick call again and was seen by Dr. Makram. She

requested a feed-in cell permit, but was again denied. (Id. ¶¶ 12–13.) Dr. Makram did not conduct

a proper evaluation of Plaintiff’s prior diagnosis or her incontinence. (Id. ¶ 13.) Dr. Makram was

“wholly unprofessional” toward Plaintiff. (Id. ¶ 14.) Dr. Makram became “impatient and angry”

with Plaintiff’s accented speech and made inappropriate comments regarding Plaintiff’s gender

identity. (Id. ¶¶ 14–15.) Specifically, Dr. Makram allegedly told Plaintiff:

You transgender inmates believe that you are entitled to everything. Well, you are

not! I’m the doctor here. This is my office, and I will decide who is provided what,

and who isn’t. Frankly, the world would be a better place if they packed you all up

and shipped you off to your own prison to live or die. You will not get any special

treatment from me because you’re some sort of shemale.

(Id. ¶ 15.) Dr. Makram then refused: (1) to examine the medical or diagnostic history provided in

Plaintiff’s documentation; (2) to issue Plaintiff a feed-in cell permit or provide her with medical

incontinence briefs or undergarments; and (3) to schedule any follow up examinations with a

specialist for Plaintiff. (Id. ¶¶ 16–17.)

On August 18, 2014, Plaintiff filed a grievance pertaining to Dr. Makram’s actions, which

the IGRC and Cunningham denied. (Id. ¶ 18.) Plaintiff then submitted an appeal that the CORC

unanimously accepted in part. However, the CORC rejected Plaintiff’s claims related to

Defendants’ actions and indifference to her serious medical needs. (Id.)

Plaintiff contends that as a result of Defendants’ actions and failure to recognize or make

accommodations for her medical conditions, she suffered weight loss, severe anxiety, mental

anguish and duress. (Id. ¶¶ 10, 19.) On September 17, 2015, Plaintiff filed another grievance

raising these issues and reasserting the continued denial of a medically approved feed-in cell

permit. (Id. ¶ 20.) She neither received a response nor a determination from the IGRC,

Cunningham, or the CORC. (Id.) Plaintiff claims to have exhausted all administrative remedies

available to her against Dr. Makram and Cunningham. (Id. ¶ 21.)

II. Procedural History

On August 18, 2014, Plaintiff, proceeding pro se, initially commenced this action pursuant

to Section 1983 alleging violations of his Fourth, Eighth, and Fourteenth Amendment rights

against several correctional facility officers. (ECF No. 2.) Plaintiff has since amended her

pleadings four times. (ECF Nos. 6, 10, 11, 24, 76.)

On December 5, 2014, Plaintiff filed an Amended Complaint naming the Mid-State

Correctional Facility and several employees at the Woodbourne Correctional Facility, including

Dr. Makram and Cunningham, as Defendants. (ECF No. 6.) On December 24, 2014, the Court

dismissed the Mid-State Correctional Facility because the claims against it had been severed and

transferred to the Northern District of New York. (ECF No. 8.) The Court also issued a Valentin

Order, directing the New York Office of the Attorney General to ascertain the identities of the

unidentified Defendants and the addresses where each may be served. (ECF No. 8.)

On February 13, 2015, Plaintiff filed her Second and Third Amended Complaints, naming

an additional correctional officer as a Defendant. (ECF Nos. 10, 11.) After all Defendants were

identified by letters dated May 27 and June 8, 2015 (see ECF No. 16), pursuant to the Valentin

Order, the Court directed Plaintiff to file her Fourth Amended Complaint on or before August 22,

2016. (ECF No. 22.)2

On September 2, 2016, Plaintiff filed her Fourth Amended Complaint naming several

employees at the Woodbourne Correctional Facility, including Dr. Makram and Cunningham, as

Defendants. (ECF No. 24.) On August 6, 2018, after Defendants were served and they filed a

2 The Court extended Plaintiff’s time to file her Fourth Amended Complaint to September 5, 2016. (ECF

No. 23.)

motion to dismiss, the Court dismissed Plaintiff’s Fourth Amendment Complaint with leave to re-

plead certain claims. (ECF No. 72.)

On October 12, 2018, Plaintiff filed her 5AC, only re-pleading the instant claims against

Dr. Makram and Cunningham. (ECF No. 76.) Defendants moved to dismiss, along with supporting

papers, Plaintiff’s 5AC on June 28, 2021. (ECF Nos. 93, 94.) However, Plaintiff never filed any

opposition. By memorandum endorsement dated September 23, 2021, the Court deemed

Defendants’ motion fully submitted. (ECF No. 96.)

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a plaintiff can defeat a motion to dismiss

by alleging facts sufficient to state a claim that is facially plausible. Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007). A “plausible” complaint must raise more than a mere possibility that the

defendant acted unlawfully. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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. A motion to dismiss will be denied where the allegations “allow[ ] the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

at 678.

Where a motion is unopposed, a court should nevertheless “assume the truth of a pleading’s

factual allegations and test only its legal sufficiency.” McCall v. Pataki, 232 F.3d 321, 322 (2d

Cir. 2000). A court must accept all factual allegations as true and draw all reasonable inferences

in the plaintiff’s favor. However, a court is “not bound to accept as true a legal conclusion couched

as a factual allegation.” Twombly, 550 U.S. at 555.

Courts must construe pro se pleadings in a particularly liberal fashion while interpreting

pro se pleadings “to raise the strongest arguments they suggest.” Harris v. Mills, 572 F.3d 66, 72

(2d Cir. 2009); Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010) (internal citation

omitted). However, a pro se plaintiff’s pleadings must contain factual allegations that sufficiently

“raise a right to relief above the speculative level.” Jackson v. N.Y.S. Dep’t of Labor, 709 F. Supp.

2d 218, 224 (S.D.N.Y. 2010). Thus, a court’s “duty to liberally construe a plaintiff’s complaint [is

not] the equivalent of a duty to re-write it.” Geldzahler v. NY. Med. Coll., 663 F. Supp. 2d 379,

387 (S.D.N.Y. 2009).

DISCUSSION

In her 5AC, Plaintiff alleges (1) an Equal Protection claim based on the class of one theory,

against Dr. Makram; (2) a deliberate indifference to serious medical needs claim, against Dr.

Makram; and (3) a deliberate indifference claim against Cunningham. (5AC at 2.)

By their motion, Defendants seek to dismiss the instant action asserting that: (1) Plaintiff’s

claim against Cunningham is time-barred, and in the alternative, that Plaintiff fails to allege any

facts indicating that Cunningham was personally involved in the 2014 incident; (2) Plaintiff fails

to allege sufficient facts to support both her deliberate indifference and Equal Protection claims

against Dr. Makram; and (3) the moving Defendants are, at a minimum, entitled to qualified

immunity. (See Mot. at 3, 6, 7, 9, 10.) The Court addresses these arguments below.

I. Deliberate Indifference Claim Against Cunningham

Defendants first maintain that Plaintiff fails to state a claim against Cunningham because

she fails to allege that he was personally involved in any alleged constitutional deprivation. (See

Mot. at 6.) After due consideration, the Court agrees.

To hold a defendant liable for constitutional deprivation, Plaintiff must show a defendant’s

personal involvement. Grullon v. City of New Haven, 720 F.3d 133, 138–39 (2d Cir. 2013).

“[P]ersonal involvement of Defendants in alleged constitutional deprivations is a prerequisite to

an award of damages under [42 U.S.C. § 1983.]” McKinnon v. Patterson, 568 F.2d 930, 934 (2d

Cir. 1977). “The general doctrine of respondeat superior does not suffice and a showing of some

personal responsibility of the Defendant is required.” Al-Jundi v. Estate of Rockefeller, 885 F.2d

1060, 1065 (2d Cir. 1989); Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 692–

95 (1978). “A plaintiff must thus allege a tangible connection between the acts of a Defendant and

the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).

“[A] plaintiff must plead that each Government-official defendant, through the official’s

own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. An inmate must

demonstrate “more than the linkage in the prison chain of command” to state a claim against a

supervisory defendant. Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985). Where a Defendant,

like Cunningham, occupies a supervisory role, “a defendant in a § 1983 action may not be held

liable for damages for constitutional violations merely because he held a high position of

authority.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Grullon, 720 F.3d at 138–

39.

Here, the Court is of the view that Plaintiff fails to allege any facts showing how

Cunningham was personally involved in the events underlying her claims. Plaintiff broadly alleges

that Cunningham participated in the constitutional violations of her Eighth and Fourteenth

Amendment rights by denying her grievances dated June 16 and August 28, 2014. (5AC ¶ 30.)

Specifically, she makes conclusory allegations that Cunningham failed to provide relief and

remedy for her medical concerns, failed to properly personally investigate the grievances, and

failed to personally address the inappropriate comments directed toward her gender identity. (5AC

¶¶ 30–32.)

As such, even when drawing all inferences in her favor, Plaintiff alleges that Cunningham’s

participation here—at best—consists solely of affirming the denial of her grievances, which by

itself fails to demonstrate “more than the linkage in the prison chain of command.” See Smart v.

Annucci, No. 19-CV-7908 (CS), 2021 WL 260105, at *5 (S.D.N.Y. Jan. 26, 2021) (“That [the

defendants] failed to act on Plaintiff's complaints . . . cannot support the inference that these

Defendants, through ‘[their] own individual actions, [have] violated the Constitution.’”) (quoting

Tangreti v. Bachmann, 983 F.3d 609, 615 (2d Cir. 2020)); Rivera v. Bloomberg, No. 11-CV-629,

2012 WL 3655830, at *6 (S.D.N.Y. Aug. 27, 2012) (“Even if the [c]omplaints could be read to

suggest that [the] [c]ommissioner . . . failed to act, a prisoner’s allegation that a supervisory official

failed to respond to a grievance is insufficient to establish that the official exhibited deliberate

indifference by failing to act on information indicating that the violation was occurring”). Thus,

Plaintiff fails to sufficiently allege that Cunningham was personally involved in any purported

constitutional violations.

Accordingly, the Court dismisses Plaintiff’s claim against Cunningham for lack of personal

involvement.3

II. Deliberate Indifference Claim Against Dr. Makram

Next, Defendants argue that Plaintiff fails to state a deliberate indifference claim against

Dr. Makram because her allegations cannot satisfy either the objective or the subjective

components of such type of claim. (See Mot. at 8.) The Court agrees.

To sustain a claim of deliberate indifference to adequate medical care, a plaintiff must

allege that (1) objectively, the deprivation of adequate medical care was sufficiently serious, and

3 Because the Court has dismissed Plaintiff’s claim against Cunningham for lack of personal involvement,

and will do so with prejudice as explained infra, the Court need not address Defendants’ argument that

Plaintiff’s claim against Cunningham is time-barred.

(2) subjectively, defendants acted with deliberate indifference. See Farmer v. Brennan, 511 U.S.

825, 834 (1994); Salahuddin v. Goord, 467 F.3d 263, 279–81 (2d Cir. 2006). The objective

component requires that “the alleged deprivation must be sufficiently serious, in the sense that a

condition of urgency, one that may produce death, degeneration, or extreme pain exists.” Hill v.

Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d

Cir. 1996)). “To meet the objective element, the inmate must show that the conditions, either alone

or in combination, pose an unreasonable risk of serious damage to his health.” Walker v. Schult,

717 F.3d 119, 125 (2d Cir. 2013) (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Phelps

v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (per curiam).

On the other hand, the subjective component requires that the official charged with

deliberate indifference must act with a “sufficiently culpable state of mind.” See Wilson v. Setter,

501 U.S. 294, 298 (1991). A prison official may only be found liable if “the official knows of and

disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.

Here, even when liberally construing the allegations in her favor, Plaintiff still fails to

allege sufficient facts establishing the objective and subjective components of a deliberate

indifference claim. First, regarding the objective component, Plaintiff fails to sufficiently allege

that her medical issues were a condition of urgency, one that may produce death, degeneration, or

extreme pain. For instance, Plaintiff alleges that Dr. Makram’s conduct caused her to suffer weight

loss, severe anxiety, mental anguish and duress. (5AC ¶¶ 10, 19.) However, Plaintiff herself alleges

that these resulted from her feeling that she was forced to choose between missing meals while

remaining in her housing unit or attending meals and being subjected to humiliation and

embarrassment. (Id. ¶ 10.) Plaintiff’s claims do not rise to the requisite level to satisfy the objective

prong. Compare Mandate v. Coughlin, 920 F. Supp. 342, 355 (E.D.N.Y. 1996) (deeming

the objective prong satisfied where defendants failed for over a year to give the plaintiff a diet

prescribed to aid in his recovery from abdominal surgery), and Jones v. Avanzato, No. 14 Civ.

2044 (NSR), 2016 WL 183565, at *5 (S.D.N.Y. Jan. 13, 2016) (concluding that a delay in

chemotherapy that advanced the plaintiff’s renal failure satisfied the objective prong), with Sloane

v. Borawski, 64 F. Supp. 3d 473, 494 (W.D.N.Y. 2014) (“broken ribs, an ankle fracture and a lower

right-side back injury” not sufficiently serious to meet objective prong), and Gonzalez v.

Greifinger, 95 CIV. 7932 (RWS), 1997 WL 732446 (S.D.N.Y. Nov. 25, 1997) (finding that an

eleven month delay in surgery for a hernia, followed by a surgery that resulted in complications,

failed to meet the sufficiently serious standard).

Plaintiff also fails to plead sufficient facts to establish the subjective component of a

deliberate indifference claim. Even when drawing all inferences in her favor, Plaintiff fails to

allege how Dr. Makram was actually aware of a substantial risk that serious harm will result. As

Defendants correctly point out, Plaintiff’s allegations regarding Dr. Makram’s “failure to act” or

“take any steps to address” Plaintiff’s medical concerns at most may constitute negligence. (See

Mot. at 8.) However, “[m]edical malpractice does not rise to the level of a constitutional violation

unless the malpractice involves culpable recklessness—‘an act or a failure to act by [a] prison

doctor that evinces a conscious disregard of a substantial risk of serious harm.’” Hill, 657 F.3d at

123 (quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)) (internal quotation omitted);

see also Estelle v. Gamble, 429 U.S. 97, 105-06 (1976) (noting that unintentional failure to provide

adequate medical care does not equate to “an unnecessary and wanton infliction of pain or to be

repugnant to the conscience of mankind”) (quotations omitted); Hathaway v. Coughlin, 99 F.3d

550, 553 (2d Cir. 1996) (noting “negligent malpractice do[es] not state a claim of deliberate

indifference”); Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (“Because the Eighth

Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort

law, not every lapse in prison medical care will rise to the level of a constitutional violation”).

Hence, Plaintiff’s allegations are insufficient to establish the subjective component of her

deliberate indifference claim against Dr. Makram.

Finally, as Defendants contend, Plaintiff’s allegations about the failure to provide a feed-

in cell permit appears to be only a debate as to the correct course of treatment. (See Mot. at 9.) As

such, to the extent Plaintiff alleges that Dr. Makram failed to act or take steps to address her

medical concerns pertain to her desire for a feed-in cell permit (5AC ¶¶ 25–26), those claims still

fail to amount to deliberate indifference on the part of Dr. Makram.

Inmates are entitled to adequate medical care while in prison; however, “[t]he prisoner’s

right is to medical care—not the type or scope of medical care which he personally desires . . .

[thus,] a difference of opinion between a physician and a patient does not give rise to a

constitutional right or sustain a claim under § 1983.” Gonzales v. Wright, 665 F. Supp. 2d 334,

347 (S.D.N.Y. 2009) (quoting U.S. ex rel. Hyde v. McGinnis, 429 F.2d 864, 867 (2d Cir. 1970)).

Moreover, “disagreements over medications, diagnostic techniques (e.g., the need for X-rays),

forms of treatment, or the need for specialists or the timing of their intervention, are not adequate

grounds for a Section 1983 claim.” See Sonds v. St. Barnabas Hosp. Correctional Health Sys., 151

F. Supp. 2d 303, 312 (S.D.N.Y. 2001); see also Wright v. Genovese, 694 F. Supp. 2d 137, 160

(N.D.N.Y. 2010) (“differences in opinion between a doctor and an inmate patient as to the

appropriate pain medication clearly do not support a claim that the doctor was deliberately

indifferent to the inmate's “serious” medical needs”).

Accordingly, the Court dismisses Plaintiff’s deliberate indifference claim against Dr. Makram.

III. Equal Protection Claim Against Dr. Makram

Lastly, Defendants contend that Plaintiff fails to sufficiently allege an Equal Protection

Claim grounded on a class of one theory based on Plaintiff’s gender identity. (See Mot. at 9.) The

Court agrees.

“A class-of-one claim exists ‘where the plaintiff alleges that she has been intentionally

treated differently from others similarly situated and that there is no rational basis for the difference

in treatment.’” Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010) (quoting

Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). A plaintiff must show an “extremely

high degree of similarity” between herself and any offered comparators to establish an inference

that plaintiff was “intentionally singled out for reasons that so lack any reasonable nexus with a

legitimate governmental policy that an improper purpose—whether personal or otherwise—is all

but certain.” Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006). Thus, to state a valid

class-of-one claim, a plaintiff must assert that:

(i) no rational person could regard the circumstances of the plaintiff to differ from

those of a comparator to a degree that would justify the differential treatment on

the basis of a legitimate government policy; and (ii) the similarity in circumstances

and difference in treatment are sufficient to exclude the possibility that the

defendants acted on the basis of a mistake.

Id.

Here, Plaintiff’s allegation that Dr. Makram treated her in a manner that was different from

other similarly situated inmates such that it constituted a violation of Plaintiff’s rights as a singular

class under the Fourteenth Amendment is meritless. Nowhere in the 5AC does Plaintiff allege any

facts pertaining to comparators or other similarly situated inmates. See Banks v. Cnty. of

Westchester, 168 F. Supp. 3d 682, 696 (S.D.N.Y. 2016) (dismissal proper in absence of allegations

of “any meaningful comments, actions, or examples of similarly-situated persons outside of [his]

protected class being treated differently”). And insofar as Plaintiff is attempting to allege inmates,

solely by virtue of their status, are members of a protected class, such a claim fails. See Randolph

v. DOCCS, No. 17-CV-0700 (NSR), 2018 WL 4374006, at *5 (S.D.N.Y. Sept. 13, 2018) (noting

that inmates are not a protected class).

Accordingly, the Court dismisses Plaintiff’s Equal Protection claim against Dr. Makram.4

IV. Leave to Amend

Pro se plaintiffs are generally allowed an opportunity to amend their complaint prior to

dismissal with prejudice. Owens v. N.Y.C. Dep’t of Sanitation, No. 11-CV-8297, 2013 WL 150245,

at *3 (S.D.N.Y. Jan. 15, 2013) (“[A] court should grant leave to amend [to a pro se litigant] at least

once before dismissing [a complaint] with prejudice”); Breer v. Maranville, No. 12-CV-0053,

2012 WL 6597707, at *3 (D. Vt. Nov. 27, 2012) (“The Second Circuit has cautioned that district

courts should not dismiss pro se complaints with prejudice without granting leave to amend at

least once when a liberal reading of the complaint gives any indication that a valid claim might be

stated.”). However, this Court has already afforded Plaintiff numerous opportunities to amend her

complaint. After multiple futile attempts, the circumstances do not warrant the granting of another

opportunity to amend.

4 Because the Court has already dismissed Plaintiff’s claims for failure to state a claim, the Court need not

address Defendants’ arguments on qualified immunity.

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss and

DISMISSES Plaintiff's SAC in its entirety with prejudice. The Clerk of the Court is respectfully

directed to terminate the motion at ECF No. 93, to terminate the action, to mail a copy of this

Opinion and Order to Plaintiffs last known address and to show service on the docket.

Dated: June 27, 2022 SO ORDERED:

White Plains, New York

NELSON S. ROMAN

United States District Judge

14