McFadden v. Koenigsmann

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

___________________________________

REGINALD GHAFFAAR MCFADDEN,

Plaintiff,

-v- 18-CV-6684 FPG

ORDER

ANTHONY ANNUCCI, COMMISSIONER

OF DOCCS, et al.,

Defendants.

___________________________________

INTRODUCTION

Pro se Plaintiff, Reginald Ghaffaar McFadden, is a prisoner confined at the Attica

Correctional Facility (“Attica”). Plaintiff’s Amended Complaint presents numerous claims arising

under 42 U.S.C. § 1983. ECF No. 17.

Currently before the Court are (1) Plaintiff’s Motion for Temporary Restraining Order

regarding COVID-19, ECF No. 15; (2) Plaintiff’s Motion for Temporary Restraining Order

regarding Retaliation, ECF No. 21; (3) Defendants’ Motion to Dismiss for Failure to State a Claim,

ECF No. 23; (4) Plaintiff’s Motion for Default Judgment, ECF No. 30; (5) Plaintiff’s Motion to

Strike Pleadings, ECF No. 33; (6) Plaintiff’s Motion for Summary Judgment, ECF No. 37; (7)

Plaintiff’s Motion for Consolidation, ECF No. 38; (8) Plaintiff’s Motion to Compel, ECF No. 39;

and (9) Plaintiff’s Motion to Effect Service, ECF No. 40. For the reasons below, Defendants’

Motion to Dismiss, ECF No. 23, is GRANTED IN PART and DENIED IN PART; Plaintiff’s

Motions, ECF Nos. 15, 21, 30, 33, 37, 38, and 40 are DENIED; and Plaintiff’s Motion to Compel,

ECF No. 39, is GRANTED IN PART and DENIED IN PART.

PROCEDURAL HISTORY

Plaintiff commenced this action on September 25, 2018 when he filed his Complaint, ECF

No. 1. Plaintiff also sought permission to proceed in forma pauperis. Initially, the Court denied

Plaintiff permission to proceed in forma pauperis under 28 U.S.C. § 1915(g) because it found

Plaintiff had garnered three or more strikes and did not allege that he was in imminent danger of

serious physical injury. ECF No. 8. Plaintiff appealed that order, and the United States Court of

Appeals for the Second Circuit vacated the order and remanded this action because it determined

that Plaintiff had sufficiently alleged that he was in imminent danger of serious physical injury.

ECF No. 13.

On May 19, 2020, the Court granted Plaintiff permission to proceed in forma pauperis and

screened the Complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. ECF No. 14. In its Decision

and Order screening the Complaint, ECF No. 14, the Court, inter alia, dismissed all claims and

granted leave to file an amended complaint by July 15, 2020.

On June 3, 2020, Plaintiff filed a Motion for Temporary Restraining Order, ECF No. 15,

with an attached amended complaint. The Court issued an order on June 5, 2020, directing the

Clerk of Court to, inter alia, (1) detach the Amended Complaint, ECF No. 17, and docket it

separately from the Motion for Temporary Restraining Order; (2) cause the United States Marshals

Service to serve copies of the Summons, Amended Complaint and motion papers upon the named

Defendants; and (3) forward a copy of the Amended Complaint and motion papers to Gary M.

Levine Assistant Attorney General. 1 ECF No. 16.

1 Per a June 9, 2020 notation on the case docket, the Clerk of Court emailed a copy of the Amended Complaint, ECF

No. 17, Motion for TRO, ECF No. 15, and the Court’s June 5, 2020 Order, ECF No. 16, to Assistant Attorney General

Gary M. Levine. See McFadden v. Koengismann, et al., 6:18-cv-6684-FPG, June 9, 2020 Docket Entry.

In response to the Court’s order, ECF No. 16, summons were issued on June 9, 2020, and

mailed to the U.S. Marshals Service in Buffalo for service, as to 17 Defendants: Anthony J.

Annucci, Jr., Deborah Bonning, Kevin Bruen, J. Clinton, Christopher Dutty, Deborah Graf,

Vincent Hawley, Brian Hembrook, Sandra Michalek, J. Moore, John Morley, MD, Joseph Noeth,

Christina Olney, Alicia Schunk, J. Spangler, D. Williams, and Luci Wilson. See McFadden v.

Koengismann, et al., 6:18-cv-6684-FPG, June 9, 2020 Docket Entry.

On June 11, 2020, Plaintiff requested appointment of counsel. ECF No. 18. On July 7,

2020, the Court denied Plaintiff’s request for counsel without prejudice. ECF No. 20. The Court

also issued a Valentin order, directing the New York State Attorney General’s Office to ascertain

the full names of Defendants “__ S, Sergeant ACF-DOCCS” (“Sgt. S.”) and “M Z __, Registered

Nurse #401” (“Nurse M.Z.”) and provide addresses at which they could be served with the

Summons and Amended Complaint.2 ECF No. 20. In an attorney declaration filed along with

Defendants’ motion to dismiss, defense counsel timely responded to the Court’s Valentin order,

stating “[u]pon information and belief, J. Moore, J. Spangler, RG ‘M Z,’ and Sgt. ‘S’ were not

served and have not been identified.” ECF No. 23-1 at 3.

On July 15, 2020, Plaintiff filed a letter motion styled as a Temporary Restraining Order

“to prevent Defendants from taking further retaliatory action.” ECF No. 21.

On July 31, 2020, executed summons were returned for 13 Defendants: Anthony J.

Annucci, Jr, Deborah Bonning, Kevin Bruen, J. Clinton, Christopher Dutty, Deborah Graf, Vincent

2 The Clerk of Court emailed the July 7, 2020 Valentin order to Assistant Attorney General Gary M. Levine. See ECF

No. 20.

Hawley, Brian Hembrook, John Morley, MD, Joseph Noeth, Christina Olney, Alicia Schunk, and

D. Williams.3 See ECF No. 22.

On August 17, 2020, Defendants moved to dismiss the Amended Complaint and all causes

of action pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 23. In the alternative,

Defendants requested an order under Federal Rule of Civil Procedure 12(e) for a more definite

statement. Id. Defendants also responded in opposition to Plaintiff’s Motion for Temporary

Restraining Order. ECF No. 24.

On August 27, 2020, Plaintiff responded in opposition to Defendant’s motion to dismiss,

ECF No. 29, and filed a Motion for Default Judgment. ECF No. 30. On September 8, 2020,

Plaintiff filed a “Supplemental Submission In Support of Denial of Defendant’s Motion to Dismiss

and Granting Default Judgment,” ECF No. 31, in which he (1) added further argument to his

Motion for Default Judgment; and (2) offered to resolve this case in lieu of default judgment in

exchange for “Immediate Medical Deporttion [sic] Out Of The United States Forever” to “the Holy

City Of Najaf, Iraq.” ECF No. 31 at 3.

On September 21, 2020, Plaintiff filed (1) a reply to Defendants’ opposition to his default

judgment motion, ECF No. 32; and (2) a Motion to Strike Pleadings, ECF Nos. 33, 34.4 On October

8, 2020, Plaintiff filed a sur-reply to Defendants’ motion to dismiss, ECF No. 35, without seeking

3 An executed summons was returned as to Defendant Sandra Michalek on August 26, 2020. ECF No. 26. On

September 1, 2020, unexecuted summons were returned as to Defendants J. Moore and J. Spangler, indicating that

these individuals could not be located. ECF No. 27. A summons was not returned as to Defendant Luci Wilson. See

McFadden v. Koengismann, et al., 6:18-cv-6684-FPG, Docket.

4 Plaintiff’s “Reply to Defendant’s Opposition to Motion for Default Judgment,” ECF No. 32, states that Plaintiff is

“in receipt of [Assistant Attorney General] Brown’s Sept. 10th, 2020 Declaration In Opposition to [Plaintiff’s] Motion

for Default Judgment.” Plaintiff’s Reply proceeds to quote passages from this Sept. 10, 2020 Declaration. See

generally ECF No. 32. The Court did not and, to date, has not received Defendants’ response in opposition to

Plaintiff’s Motion for Default Judgment referenced in this document. See McFadden v. Koengismann, et al., 6:18-cv-

6684-FPG, Docket. Assistant Attorney General Brown is directed to provide the Court a copy of this document via

filing on the electronic case docket as soon as practicable.

leave of Court. On January 5, 2021, Plaintiff moved for summary judgment pursuant to Federal

Rule of Civil Procedure 56(a) or (d). ECF No. 37.

On February 1, 2021, Plaintiff filed two additional motions: (1) a Motion to Compel “the

Defendants’ counsel, AAG Matthew D. Brown, to comply with this Court’s Order that Ordered

Defendants to identify the names, titles of defendants” Sgt. S. and Nurse M.Z.; and (2) a Motion

to Effect Service on Defendants J. Moore and J. Spangler. ECF Nos. 39, 40. On February 5, 2021,

Defendants filed a response in opposition to Plaintiff’s summary judgment motion and requested

that the Court bar Plaintiff from filing additional motions until the Court rules on the pending

motions. ECF No. 41 at 6.

Pending before the Court are (1) Plaintiff’s Motion for Temporary Restraining Order

regarding COVID-19, ECF No. 15; (2) Plaintiff’s Motion for Temporary Restraining Order

regarding Retaliation, ECF No. 21; (3) Defendant’s Motion to Dismiss for Failure to State a Claim,

ECF No. 23; (4) Plaintiff’s Motion for Default Judgment, ECF No. 30; (5) Plaintiff’s Motion to

Strike Pleadings, ECF No. 33; (6) Plaintiff’s Motion for Summary Judgment, ECF No. 37; (7)

Plaintiff’s Motion to Consolidate, ECF No. 38; (8) Plaintiff’s Motion to Compel, ECF No. 39; and

(9) Plaintiff’s Motion to Effect Service, ECF No. 40.

DISCUSSION

The Court considers Plaintiff’s Motion for Default Judgment and Motion to Strike first

because, if granted, consideration of Defendant’s Motion to Dismiss would be unnecessary. See

Eberhard Investment Assocs., Inc. v. Santino, No. 01 Civ.3840 LMM, 2003 WL 22126846, at *1

(S.D.N.Y. Sept. 12, 2003) (“The Court considers first [Plaintiff’s] motions for default

judgments.”); see also Smith v. Donaher, No. 12–CV–6035–CJS, 2013 WL 2531750, at *3

(W.D.N.Y. June 10, 2013) (considering plaintiff’s motion for default judgment before proceeding

to defendant’s motion to dismiss).

I. Plaintiff’s Motion for Default Judgment and Motion to Strike

On August 27, 2020, Plaintiff filed a Motion for Default Judgment against “all named

Defendants” seeking default judgment under Federal Rule of Civil Procedure 55(b)(2). ECF No.

30. Plaintiff argues that Defendants received their summons and complaint by June 27, 2020, and

Defendants’ motion to dismiss, filed on August 17, 2020, was therefore untimely. See id.

Pursuant to a Standing Order of Court, filed September 28, 2012, a defendant will have 60

days to file and serve an answer or other responsive pleading under Federal Rule Civil Procedure

12(a)-(b), if the defendant and/or the defendant’s agent has returned an Acknowledgment of

Receipt of Service by Mail Form within 30 days of receipt of the summons and complaint by mail

pursuant to N.Y.C.P.LR. § 312–a.5 See Lewis v. Gowanda Correctional Facility, No. 15–CV–

0168A, 2015 WL 5146997, at *4 n.3 (W.D.N.Y. Aug. 28, 2015). If the defendant and/or the

defendant’s agent fails to return an Acknowledgment of Receipt of Service by Mail Form within

30 days of receipt of the summons and complaint by mail, he must file and serve his answer or

other responsive proceeding in the 21-day time period set out in Federal Rule of Civil Procedure

12(a)(1)(A)(i).

Here, summons were mailed by the US Marshals Service on June 18, 2020. See ECF No.

22. On July 31, 2020, executed summons were returned for 13 Defendants: Anthony J. Annucci,

Jr, Deborah Bonning, Kevin Bruen, J. Clinton, Christopher Dutty, Deborah Graf, Vincent Hawley,

Brian Hembrook, John Morley, MD, Joseph Noeth, Christina Olney, Alicia Schunk, and D.

Williams. Id. The Acknowledgement of Receipt of Summons and Complaint was signed by

5 The Court’s September 28, 2012 Standing Order may be accessed on the Court’s website at the following address:

https://www.nywd.uscourts.gov/sites/nywd/files/StandingOrder_Standing%20Order%20104.pdf.

Assistant Attorney General Matthew Brown and dated July 27, 2020 for each of the 13 Defendants.

Because the Acknowledgment was not returned within 30 days, Defendants did not enjoy the

benefit of the 60-day timeframe under the Court’s September 28, 2012 Standing Order.

Nonetheless Defendants’ motion to dismiss was timely.

“Service is complete on the date the signed acknowledgement of receipt is mailed or

delivered to the sender. The signed acknowledgement of receipt shall constitute proof of service.”

Morris v. New York Gaming Commission, No. 18-CV-00384V(F), 2019 WL 2423716, at *3

(W.D.N.Y. Mar. 14, 2019) (quoting N.Y.C.P.LR. § 312–a(b)) . Service was therefore complete on

July 27, 2020, and Defendants’ motion to dismiss, filed August 17, 2020, was timely filed within

the 21-day time period set out in Federal Rule of Civil Procedure 12(a)(1)(A)(i). Plaintiff’s Motion

for Default Judgment is therefore DENIED. Plaintiff’s Motion to Strike, ECF No. 33, which is

premised on a similar misunderstanding of the time allotted for a responsive pleading in this case,

is DENIED for the same reasons.

II. Defendants’ Motion to Dismiss

A. Legal Standard

A complaint will survive a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) when it states a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A

claim for relief is plausible when the plaintiff pleads sufficient facts that allow the Court to draw

the reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678. In

considering the plausibility of a claim, the Court must accept factual allegations as true and draw

all reasonable inferences in the plaintiff’s favor. Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104

(2d Cir. 2011).

At the same time, the Court is not required to accord “[l]egal conclusions, deductions, or

opinions couched as factual allegations . . . a presumption of truthfulness.” In re NYSE Specialists

Secs. Litig., 503 F.3d 89, 95 (2d Cir. 2007). Although a court “is generally limited to the

[complaint] when considering” a motion to dismiss, it may also consider “matters of which judicial

notice may be taken,” including public records evidencing an individual’s conviction. Magnotta

v. Putnam Cty. Sheriff, No. 13-CV-2752, 2014 WL 705281, at *3 (S.D.N.Y. Feb. 24, 2014).

Although “a court is obliged to construe [pro se] pleadings liberally, particularly when they

allege civil rights violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even

pleadings submitted pro se must meet the notice requirements of Rule 8 of the Federal Rules of

Civil Procedure. Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir. 2004).

B. Analysis

The Court has identified 12 claims, or groups of claims, and considers each in turn below.

As Plaintiff was advised in this Court’s May 19, 2020 Decision & Order related to the sufficiency

of the allegations in his initial Complaint, the allegations in the Amended Complaint completely

replace the prior Complaint in this action. See ECF No. 14 at 19. The factual allegations below are

drawn from Plaintiff’s Amended Complaint and are accepted as true with all inferences drawn in

Plaintiff’s favor, as required at this stage of the litigation.

1. Failure to Return Plaintiff to ECMC Cardiology for Pacemaker

On April 19, 2011, Plaintiff suffered a heart attack resulting in the loss of 50% of his heart’s

function and the placement of two stents. ECF No. 17 at 13. On August 7, 2013, Plaintiff was

admitted to Erie County Medical Center (“ECMC”) because of his heart, and, on August 20, 2012,

ECMC determined that Plaintiff needed a Pacemaker. Id. The Pacemaker Plaintiff was given had

an expected battery life of five years, depending on the condition of Plaintiff’s heart. Id. Plaintiff

was discharged on August 21, 2012 and his discharge instructions indicated that he should return

to ECMC’s Cardiology Department within three months of discharge to have the Pacemaker

checked. Id. at 8. Defendants Deborah Graf, a Physician Assistant, and Deborah Bonning, a

Registered Nurse, reviewed the discharge instructions on August 30, 2012 but failed to return

Plaintiff to ECMC Cardiology for follow-up to check the Pacemaker, even though it was

malfunctioning. Id. at 7-8. This prompted Plaintiff to file a grievance. ECF No. 17 at 8.

To the extent Plaintiff is bringing a claim that he was not returned for cardiology follow-

up in accordance with the discharge instructions, that claim has already been dismissed with

prejudice in another action he brought before this Court. See McFadden v. Fischer, 13-CV-559-

FPG, 16-CV-6105-FPG, 2016 WL 5661824, at *15 (W.D.N.Y. Sept. 30, 2016). Therefore, any

claim in the Amended Complaint related to a failure to return Plaintiff to ECMC cardiology in

accordance with the discharge instructions is DISMISSED WITH PREJUDICE.

2. Removal of Left Arm Brace and Damage to Left Arm from Handcuffing

Plaintiff’s August 21, 2012 discharge instructions also stated “No Lifting Left Arm x 6

weeks, No B/P Left Arm.” ECF No. 17 at 8. Despite this instruction, Defendant Bonning removed

Plaintiff’s left arm brace on August 30, 2012, which subjected him to the Special Housing Unit’s

(“SHU”) practice of “having to lift arms to be handcuffed through an opening chest level

backward, resulting in damage to left arm.” Id.

The Court does not read these allegations as separate claims but rather as part of the

backstory regarding Plaintiff’s many alleged injuries and claims. Indeed, Plaintiff does not list any

claims related to these specific allegations on his list of claims in the Amended Complaint, ECF

No. 17 at 29, and Defendants’ Motion to Dismiss does not address these allegations. See ECF No.

23. Even assuming they are intended as separate causes of action, the allegations are insufficient

to state a claim.

Eighth Amendment claims are analyzed under the “deliberate indifference” standard set

out in Estelle v. Gamble, 429 U.S. 97 (1976); Grayson v. Courtney, No. 9:16-CV-1118

(GLS/ATB), 2018 WL 6933296, at *8 (N.D.N.Y. Dec. 3, 2018). This standard has both objective

and subjective components. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). Under the

objective component, the alleged medical need or condition must be “sufficiently serious.” Id. A

“sufficiently serious” medical need is “a condition of urgency, one that may produce death,

degeneration, or extreme pain.” Id. “Factors that have been considered include the existence of an

injury that a reasonable doctor or patient would find important and worthy of comment or

treatment; the presence of a medical condition that significantly affects an individual’s daily

activities; or the existence of chronic and substantial pain.” Chance v. Armstrong, 143 F.3d 698,

702 (2d Cir. 1998) (citation and internal quotation marks omitted).

The use of force is a violation of the Eighth Amendment when it is applied in a “malicious[]

and sadistical[] [manner] to cause harm,” rather than “in a good-faith effort to maintain or restore

discipline[.]” Hudson v. McMillian, 503 U.S. 1, 5, 7 (1992). To assess an Eighth Amendment

claim, the Court must consider both the subjective and the objective components of the alleged

violations. Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994).

With respect to the removal of the left arm brace, Plaintiff’s allegations are devoid of the

“sufficiently serious” medical need, in that there is no indication that Defendant Bonning’s

decision to remove the brace resulted in “a condition of urgency, one that may produce death,

degeneration, or extreme pain.” See Hathaway, 37 F.3d at 66. As for the subsequent placement of

Plaintiff in handcuffs at the SHU, and to the extent Plaintiff is attempting to allege an excessive

force claim related to that incident, the allegations fail to name which Defendants engaged in the

alleged conduct and thus fail to state a claim upon which relief can be granted and must be

dismissed. See McFadden, 2016 WL 5661824, at *12.6 Any claims related to the removal of

Plaintiff’s left arm brace and/or damage to Plaintiff’s left arm from handcuffing in the SHU are

DISMISSED WITHOUT PREJUDICE.

3. Failure to Replace Pacemaker Batteries Within 5 Years and Forced

Discharge from Hospital after Pacemaker Procedure

August 20, 2017 marked the five-year period since Plaintiff’s Pacemaker was installed,

and he was due at that time for the battery to be replaced. ECF No. 17 at 8. Defendants Graf,

Schunk, Bonning, and Williams “refused to . . . replace Pace Maker’s Generator/Batteries,”

prompting Plaintiff to file a grievance. Id. It was not until May 16, 2019 that Defendant Graf

referred Plaintiff for a Pacemaker battery replacement. Id. On August 21, 2019, a cardiologist

confirmed that Plaintiff’s Pacemaker generator or battery needed to be replaced. Id.

On October 2, 2019, Defendants “provided Pace-Maker Replacement but not before its

malfunctioning [caused] damage to the already weak heart,” resulting in an emergency

hospitalization and placement in the Intensive Care Unit from October 10, 2019 through October

15, 2019, “due to an apparent heart attack.” Id. Plaintiff states that Defendants “knew or should

have known, that Pace-Maker Generator/Battery needed to be changed, without Plaintiff having

to repeatedly file grievances.” ECF No. 17 at 8.

6 Claims arising from the removal of the left arm brace and subsequent handcuffing in the SHU appear to be time-

barred, though the Court dismisses them here for failure to state a claim. See McFadden, 2016 WL 5661824, at *8

(“While a court should not dismiss a claim on the basis of the statute of limitations without first providing plaintiff

with notice and an opportunity to respond, . . . the Court need not provide notice and opportunity prior to dismissing

this Claim because the claims asserted therein fail to state a claim upon which relief can be granted and are being

dismissed on that basis.” (internal citation omitted)).

In addition to Defendants Graf, Schunk, Bonning, and Williams, Plaintiff also alleges that

Defendant Sergeant John Doe’s actions caused his heart attack. Sgt. S. improperly removed him

from the operation room after the October 2, 2019 heart procedure “despite a specific request by

medical” to have Plaintiff remain hospitalized overnight. Plaintiff alleges that Sgt. S.’s actions

went against a policy “that all patients are held over-night to monitor the patient.” ECF No. 17 at

11. Once Sgt. S. returned Plaintiff to his cell, Plaintiff “almost immediately” tried to schedule an

appointment with medical but was unable to get one until October 10, 2019. Id. By the time

Plaintiff was taken to the infirmary on October 10, 2019, he “was having[ ] another Heart Attack,”

and was taken back to ECMC until October 15, 2019. Id. at 11-12.

As discussed above, Eighth Amendment medical care claims are analyzed under the

“deliberate indifference” standard set out in Estelle, 429 U.S. at 104-05. This standard has both

objective and subjective components. Hathaway, 37 F.3d at 66. Objectively, a plaintiff must allege

a serious medical condition. Id. at 66. “A serious medical condition exists where ‘the failure to

treat a prisoner’s condition could result in further significant injury or the unnecessary and wanton

infliction of pain.’” Harrison v. Barkley, 219 F.3d 132, 136-137 (2d Cir. 2000) (quoting Chance,

143 F.3d at 702). Subjectively, a plaintiff must adequately allege that the prison official had actual

knowledge of his serious medical need but was deliberately indifferent. See Farmer v. Brennan,

511 U.S. 825, 837 (1994).

Defendants argue that Plaintiff fails to allege deliberate indifference with respect to this

claim. ECF No. 23-2 at 12. “[A] condition is objectively serious if, among other things, a

reasonable doctor or patient would find [it] important and worthy of comment or if it causes

chronic and substantial pain to the inmate.” McFadden v. Noeth, 827 Fed. App’x. 20, 26 (2d Cir.

2010) (summary order) (citations & internal quotations omitted). Liberally construing Plaintiff’s

allegations, he has alleged a sufficiently serious condition to satisfy the objective prong. A

Pacemaker battery in need of replacement and a heart attack and/or heart damage allegedly

resulting from a delay in that replacement, or disruption of adequate follow-up care in the

immediate aftermath of a heart procedure, “constitute a condition that a reasonable patient or

physician would consider important and worthy of comment or treatment.” Smith v. Outlaw, No.

15-CV-9961 (RA), 2017 WL 4417699, at *4 (S.D.N.Y Sept. 30, 2017) (concluding plaintiff’s

heart-related symptoms and alleged heart attack were a sufficiently serious condition to satisfy the

objective prong).

Turning to the subjective prong, Plaintiff has alleged that Defendants Graf, Schunk,

Bonning, and Williams refused to have his Pacemaker battery replaced and that their refusal

prompted to him to file a grievance. ECF No. 17 at 8. Plaintiff has not provided the grievance but

has cited a grievance number. Id. Liberally construing Plaintiff’s allegations, the Court infers that

Defendants were aware of the need to replace Plaintiff’s Pacemaker battery in August 2017, and

any potential harm associated with the failure to do so, because they “refused” to have it replaced

despite the fact that 5 years had passed since it was installed. Defendants may also have been aware

of Plaintiff’s need to have the Pacemaker battery replaced based upon the grievance Plaintiff

allegedly filed—however it is unclear what the grievance said and to whom it was directed. See

id. Nonetheless, Plaintiff has colorably alleged both prongs of an Eighth Amendment claim with

respect to Defendants Graf, Schunk, Bonning, and Williams. See McFadden v. Noeth, 827 Fed.

App’x. at 27.

Plaintiff has also plausibly alleged that Sgt. S. refused to permit him to remain overnight

after his heart surgery, despite a specific request by medical personnel to have Plaintiff remain for

medical monitoring and against a policy that requires Plaintiff to remain for such monitoring.

Accepted as true, these allegations colorably allege the subjective prong of the Eighth Amendment

inquiry as to Defendant Sgt. S. See Farmer, 511 U.S. at 837. Accordingly, Defendants’ Motion to

Dismiss these claims is DENIED.

4. Excessive Force: Restraints

Plaintiff alleges that on three occasions, April 17, 2018, October 2, 2019, and October 15,

2019, Defendant Sgt. S. and two other officers transported him to outside medical visits in full

restraints.7 ECF No. 17 at 10-12. Defendants argue that these claims fail because Plaintiff has not

alleged that he suffered any injuries from these incidents and has not alleged that Defendant Sgt.

S. acted with the necessary level of culpability. ECF No. 23-2 at 10. The Court disagrees.

The use of force is a violation of the Eighth Amendment when it is applied in a “malicious[]

and sadistical[] [manner] to cause harm,” rather than “in a good-faith effort to maintain or restore

discipline[.]” Hudson, 503 U.S. at 5, 7. To assess an Eighth Amendment claim, the Court must

consider both the subjective and the objective components of the alleged violations. Davidson, 32

F.3d at 29. The Supreme Court has “rejected the notion that ‘significant injury’ is a threshold

requirement for stating an excessive force claim. The core judicial inquiry, . . . [is] not whether a

certain quantum of injury was sustained, but rather whether force was applied in a good-faith effort

to maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy,

559 U.S. 34, 36 (2010) (citations & internal quotation marks omitted).

Plaintiff alleges that Defendant Sgt. S. forced him on one occasion to walk down a flight

of steps, then the length of two football fields, in full restraints, against a policy of escorting

prisoners down steps in a secure facility while fully restrained. Furthermore, Plaintiff alleges that

7 It is unclear whether the two other unidentified officers were present on all three occasions or only on October 2,

2019.

during that escort, Sgt. S. harassed him, threatened him, and called him degrading names. ECF

No. 17 at 10. On another occasion, Sgt. S. forced Plaintiff to walk in full restraints against a

practice of permitting discharged patients to use a wheelchair. Plaintiff alleges that Sgt. S. did this

out of “spite and racial animus,” in order to get revenge for a past negative history between the

two, and in order to make Plaintiff as uncomfortable as possible. Plaintiff alleges that the April 17,

2018 incident resulted in “[p]hysical therapy [having] to be re-started, delaying the healing” of a

prior left-ankle injury. Id. at 12. Liberally, construing these allegations, they plausibly state a claim

under Wilkins that the force employed by Sgt. S. was not done in a good-faith effort to maintain

or restore discipline but rather “maliciously or sadistically to cause harm.” See Wilkins, 559 U.S.

at 36. Therefore, Defendants’ motion to dismiss these claims is DENIED.

5. Denial of Medical Care Regarding Wrist Injury

Plaintiff’s allegations regarding this claim are particularly difficult to comprehend, but the

Court understands them as follows. At a sick call appointment on June 5, 2018, Defendant Bonning

refused to address Plaintiff’s wrist injury and Defendant Hawley disagreed over her refusal,

resulting in an argument between Bonning and Hawley. ECF No. 17 at 9. Hawley proceeded to

refer Plaintiff to Defendant Schunk and Defendant Graf. Plaintiff was seen by Defendant Graf on

July 10, 2018, she then made a medical referral to a specialist who, in turn, made a referral for

occupational therapy. Id. Plaintiff alleges that his physical therapist, N. Fink, falsified a document

and, due to that falsification, Plaintiff did not have an opportunity to meet with Fink. Id. at 10. In

addition, Plaintiff was subsequently written up for refusing that medical appointment. Id.

As addressed above, Eighth Amendment medical care claims are analyzed under the

“deliberate indifference” standard. Plaintiff fails to plausibly allege both components of this

standard. First, there are no amplifying details regarding his wrist injury that suggest it is “a

condition of urgency, one that may produce death, degeneration, or extreme pain.” Hathaway, 37

F.3d at 66. Second, the facts as alleged show Plaintiff was consistently evaluated and referred to

medical providers. This belies a finding of deliberate indifference. Furthermore, the allegations

that physical therapist N. Fink denied Plaintiff an appointment by falsifying a document are

“unsupported, speculative, and conclusory.” Boddie v. Schneider, 105 F.3d 857, 862 (2d Cir.

1997). Defendants’ motion to dismiss these claims is therefore granted and this claim is

DISMISSED WITHOUT PREJUDICE.

6. Denial of Medical Care Regarding Left Ankle Injury

Plaintiff alleges that, after his left ankle injury resulting from the April 17, 2018 transport

in full restraints, Defendants Graf, Schunk, and Wilson denied him medical care. Graf and Schunk

“refused to provide a cane.” ECF No. 17 at 12. Plaintiff underwent an X-ray of the ankle, and

based upon those X-ray results, Wilson decided further follow-up with a specialist was not

warranted. Id. at 13.

These allegations fail to demonstrate that Defendants had actual knowledge of a serious

medical need but were deliberately indifferent. See Farmer, 511 U.S. at 837. Plaintiff was referred

for an X-ray and an X-ray was performed. Without additional allegations, Defendants’ motion to

dismiss these claims is granted and the claims are DISMISSED WITHOUT PREJUDICE.8

7. Retaliation: Cell Search and Disciplinary Hearing

Plaintiff’s allegations with respect to these claims are difficult to understand, but the Court

reads them as follows. On April 17, 2018 and February 8, 2018, Defendants Sgt. S., Moore, and

8 A summons was not returned as to Defendant Wilson. While “[i]t is ... the well-established law of this circuit that

sua sponte dismissal of a pro se complaint prior to service of process on defendant is strongly disfavored,” McFadden,

827 Fed. App’x. at 26, here the Attorney General’s Office has filed answering papers purportedly representing

Defendant Wilson. Therefore, there is no risk that dismissal of claims as to Wilson might “deprive[ ] us of the benefit

of defendant’s answering papers.” Id.

Spangler “all knew that Plaintiff was undergoing on-going medical treatment, yet they decided to

ignore those concerns, by interfering with medical care, by taking retaliatory action, for exercising

a Protected Right.” ECF No. 17 at 13, 18-19. Defendant Clinton conducted a Disciplinary Hearing

“to deflict [sic]” official misconduct on the part of Sgt. S., Moore, and Spangler. The alleged

misconduct was (1) a cell search conducted outside Plaintiff’s presence in violation of an official

directive; (2) the removal of all legal material, documents, religious books, and personal letters

from Plaintiff’s cell without his consent in violation of an official directive; and (3) filing a patently

false misbehavior report. Id.

The disciplinary hearing conducted by Defendant Clinton denied Plaintiff the right to

confront witnesses, the right to offer documentary evidence, and the right to a full record on appeal.

Id. at 14. The hearing resulted in Plaintiff’s detention in his cell for 259 days, which interfered

with ongoing medical care and treatment, and denied Plaintiff’s due process rights.

Prison officials may not retaliate against prisoners for exercising their constitutional rights.

Mount Healthy Sch. Dist. v. Doyle, 429 U.S. 274, 287 (1977). To make out a § 1983 retaliation

claim, a prisoner must show: (1) that he was engaged in constitutionally protected conduct; and

(2) that the prison official’s conduct was taken in retaliation for the prisoner’s protected conduct.

Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). A finding of sufficient permissible reasons

to justify state action is “readily drawn in the context of prison administration where we have been

cautioned to recognize that prison officials have broad administrative and discretionary authority.”

Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994) (citation omitted). Moreover, courts recognize

that retaliation claims by prisoners are “prone to abuse” since prisoners can claim retaliation for

every decision they dislike. Colon v. Coughlin, 58 F.3d 865, 872 (2d. Cir. 1995) (“[B]ecause we

recognize both the near inevitability of decisions and actions by prison officials to which prisoners

will take exception and the ease with which claims of retaliation may be fabricated, we examine

prisoner’s claims of retaliation with skepticism and particular care”). Thus, “a complaint which

alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone

[because i]n such a case, the prisoner has no factual basis for the claim . . . .” Flaherty v. Coughlin,

713 F.2d 10, 13 (2d Cir. 1983).

Because this claim alleges no facts to support a claim of retaliation, it must be dismissed.

See id. To the extent this claim can be construed as a procedural due process claim, it too fails to

state a claim upon which relief can be granted. Assuming Plaintiff alleges a protected liberty

interest, see Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004), he does not plausibly allege he

was denied due process. The Fourteenth Amendment’s Due Process Clause requires that prisoners

appearing at a disciplinary hearing be provided 24-hours written notice of the charges against them,

the right to call witnesses and present documentary evidence, the aid of a staff member or inmate

in presenting a defense, an impartial tribunal, and a written statement of the basis for the tribunal’s

decision. Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974).

Simply alleging that he was denied the right to call witnesses, present documents or to

“confront accusations” is wholly conclusory and does not state a claim upon which relief can be

granted. See Rush v. Canfield, 649 F. App’x 70, 71 (2d Cir. 2016) (summary order) (plaintiff’s

assertion that he was “denied the right to call witnesses and the right to assistance, is a bare legal

conclusion incapable of surviving a motion to dismiss”) (citation and internal quotation marks

omitted). Accordingly, Defendant’s motion to dismiss Plaintiff’s retaliation claims is granted and

these claims are DISMISSED WITHOUT PREJUDICE.9

9 Claims against Defendants Moore and Spangler are dismissed pursuant to under 28 U.S.C. § 1915A and 28 U.S.C.

§ 1915(e)(2)(B).

8. Denial of Access to Courts

Plaintiff alleges that Defendants Hembrook, Dutty, Bruen, and Clinton only provided him

with less than three hours per week of access to the law library, when DOCCS’ library access

policy requires “a minimum of seven hours per day atlease [sic] six days per week or six hours per

day, seven days per unless a written variance has been issued by DLLC.” ECF No. 17 at 15.

Plaintiff filed 11 grievances in response to the limitation on his library access. Id.

Furthermore, Defendant Bruen permitted Defendants Hembrook and Dutty to charge

Plaintiff 10 cents per page for one-sided copies, and 20 cents per page for two-sided copies, instead

of 15 cents per page “charged elsewhere.” Id. Additionally, these Defendants did not reduce the

cost to 5 cents per page on occasions where Plaintiff printed over 200 copies, resulting in Plaintiff

incurring copy service charges in excess of $2,000. Id. Defendants also denied Plaintiffs notary

services on numerous occasions, for which he filed grievances. Id. at 16. These denials resulted in

the “Jan. 12, 2018 Rejection of Default Judgment due to the lack of Notary.” ECF No. 17 at 16.10

While it is true that a correctional facility must provide an inmate with meaningful access

to the courts, Bounds v. Smith, 430 U.S. 817, 828 (1977), the mere limitation of access to legal

materials, without more, does not state a constitutional claim, as “the Constitution requires no more

than reasonable access to the courts.” Jermosen v. Coughlin, 877 F. Supp. 864, 871 (S.D.N.Y.

1995). Moreover, in order to state a constitutional claim, a plaintiff must make a showing that he

has suffered, or will imminently suffer, actual harm; that is, that he was “hindered [in] his efforts

to pursue a legal claim.” Lewis v. Casey, 518 U.S. 343, 351 (1996); see also Morello v. James, 810

F.2d 344, 347 (2d Cir. 1987).

10 Plaintiff’s Amended Complaint contains additional allegations regarding obstruction to access to the Courts in prior

cases in both state and federal courts. See ECF No. 17 at 15-17. The Court has considered these allegations and finds

they fail to state a claim.

Thus, a plaintiff must show that he has suffered an actual injury traceable to the challenged

conduct of prison officials. A plaintiff has not shown actual injury unless he shows that a

“nonfrivolous legal claim had been frustrated or was being impeded” due to the actions of prison

officials. Lewis, 518 U.S. at 351-52. Taking Plaintiff’s allegations as true, he has failed to offer

facts to explain how a nonfrivolous legal claim has been prejudiced by Defendant’s conduct. See

Smith v. O’Connor, 901 F. Supp. 644, 649 (S.D.N.Y. 1995). The Court has no additional facts by

which to evaluate the conclusory statement that Plaintiff filed a default judgment motion in some

litigation that was denied due to lack of access to a notary. Accordingly, Defendants’ motion to

dismiss Plaintiff’s claim of denial of access to the courts is granted and this claim is DENIED

WITHOUT PREJUDICE.

9. Denial of Dental Care

Plaintiff’s denial of dental care claims fail to state a claim. The allegations are unclear,

include dates from 2010 to 2016, which are likely time-barred, mention other correctional facilities

at which Plaintiff has been housed prior to Attica, and do not name a single Defendant involved in

the alleged denial of care. Accordingly, Defendants motion to dismiss these claims is granted and

these claims are DISMISSED WITHOUT PREJUDICE.

10. Second-Hand Smoking Exposure

Plaintiff alleges that New York State’s Open-Air-Law is a policy that is “supposed to be

enforced in all . . . state buildings, including Correctional Facilities.” ECF No. 17 at 22. Plaintiff

alleges that, despite this policy, Defendant Anthony Annucci, Acting Commissioner, DOCCS

“continue[s] the practice of allowing smokers, both staff and [i]nmates alike to expose non-

smokers to their habit, . . . causing COPD and CHD in Plaintiff who over the years, repeatedly

complained about being expo[sed] to Second-Hand-Passive Smoking.” Id.

“[P]rison conditions and the treatment prisoners receive while incarcerated are subject to

scrutiny under the Eighth Amendment.” Davidson v. Desai, No. 03-CV-121S, 2019 WL 125999,

at *25 (W.D.N.Y. 2019). “[T]he Eighth Amendment does not categorically protect an inmate from

any exposure to second-hand smoke,” Baker v. Moore, No. 3:16-cv-02005 (JAM), 2016 WL

7493956, at *2 (D. Conn. Dec. 30, 2016), but “[e]xposure to secondhand smoke can give rise to

an Eighth Amendment violation,” where “the exposure created an ‘unreasonable risk of serious

damage’ to inmates’ future health, and [] prison officials were deliberately indifferent to that risk.”

Jones v. Goord, 435 F. Supp. 2d 221, 249 (S.D.N.Y. 2006) (quoting Helling v. McKinney, 509

U.S. 25, 35 (1993)). Courts examining claims of second-hand smoke exposure differentiate

between claims of present and future harm caused by exposure. Johnson v. Fischer, No. 9:12–CV–

0210 (DNH/TWD), 2015 WL 670429, *27 (N.D.N.Y. Feb. 17, 2015).

Here, Plaintiff alleges he is suffering from Chronic Obstructive Pulmonary Disease

(“COPD”) and Coronary Heart Disease (“CHD”) caused by exposure to second-hand smoke and,

therefore, the Court analyzes this claim as one alleging present harm. These claims, like other

Eighth Amendment claims, are analyzed under the “deliberate indifference” standard set out in

Estelle v. Gamble, 429 U.S. 97 (1976). See Grayson, 2018 WL 6933296, at *8.

As it did in its review of Plaintiff’s initial Complaint, the Court finds that, at this stage in

the litigation, Plaintiff’s allegations that he suffers from COPD and CHD sufficiently allege a

serious medical need. See Hobson v. Fischer, No. 10 Civ. 5512(SAS), 2011 WL 891314, at *5

(S.D.N.Y. Mar. 14, 2011) (COPD found sufficiently serious to support an Eighth Amendment

claim at motion to dismiss stage); Reid v. Goord, No. 04-CV-00883 (M), 2010 WL 1407988, at

*4-5 (W.D.N.Y. Mar. 30, 2010) (same)

Allegations regarding the subjective component, however, are lacking and the same flaw

is present as in Plaintiff’s initial Complaint. Plaintiff alleges only that Acting Commissioner

Annucci “continue[s] the practice of allowing smokers, both staff and [i]nmates alike to expose

non-smokers to their habit, . . . causing COPD and CHD in Plaintiff who over the years, repeatedly

complained about being expo[sed] to Second-Hand-Passive Smoking.” Under the subjective

component, “the charged official must act with a sufficiently culpable state of mind.” Hathaway,

99 F.3d at 553 (internal quotation marks and citations omitted). The required state of mind,

equivalent to criminal recklessness, is that the official “‘knows of and disregards an excessive risk

to inmate health or safety; the official must both be aware of facts from which the inference could

be drawn that a substantial risk of serious harm exists, and he must also draw the inference.’” Id.

(quoting Farmer, 511 U.S. at 837); cf. Helling, 509 U.S. at 36 (“[T]he subjective factor, deliberate

indifference, should be determined in light of the prison authorities’ current attitudes and conduct

. . . .”).

Plaintiff’s allegation that Defendant Annucci did not enforce the non-smoking policy

within DOCCS facilities, is wholly conclusory and unsupported by any facts that Annucci knew

of and disregarded an excessive risk of second-hand exposure to Plaintiff.

Plaintiff’s Amended Complaint cites a grievance number in which he “attack[ed] DOCCS’

Policy” regarding second-hand smoke exposure and alleges that he “repeatedly complained” about

being exposed to second-hand smoke. However, Plaintiff fails to establish the personal

involvement of Defendant Annucci. In other words, the Amended Complaint fails to establish that

Annucci had notice of Plaintiff’s grievance, or other complaints about second-hand smoke

exposure, and failed to act to correct on ongoing constitutional violation. See Colon, 58 F.3d at

873 (the defendant may be liable if, after being informed of the violation through a report or appeal,

he failed to remedy the wrong).

Accordingly, Plaintiff has not alleged an Eighth Amendment violation against Defendant

Annucci related to second-hand smoke exposure. Defendants’ motion to dismiss this claim is

granted and the claim is DISMISSED WITHOUT PREJUDICE.11

11. Use of Soy Products in Alternative Meal

Plaintiff is a practicing Shi’a Ithna Asheri Muslim. ECF No. 17 at 22. Based on the tenets

of his faith, he may not “eat non-Halal meats or fish[],” and any meat or fish Plaintiff does consume

“can not be killed by non-muslims.” Id. Plaintiff alleges that DOCCS, and specifically Defendant

Christine Olney, Director of Nutritional Services, has available a halal chicken patty that would

comply with these dietary requirements. However, Olney “would not substitute [the halal chicken

patty] with [t]una, soy and meats, for [M]uslim population.”12 Id. at 23. Plaintiff filed a grievance

related to the fact that Olney denied his request to give him a halal chicken patty instead of tuna

and instead provided him with food from the Orthodox Union. Id. at 22-23. In response to

Plaintiff’s request, Olney wrote: “In consultation with the Office of Ministerial Family and

Volunteer Services and the appropriate religious authority . . . there is no tenet forbidding Muslims

from eating tuna fish.” Id. at 24. However, this consultation “did not include Shi’a Ithna Asheri

Authority.” ECF No. 17 at 24.

11 Plaintiff’s Amended Complaint, ECF No. 17 at 30, alleges that Defendants Morley, Noeth, Williams, Graf, and

Schunk violated New York’s Open Air Law and “contribut[ed] to Plaintiff be[ing] diagnose[d] with COPD and CHD

due to second-hand-smoke.” However, the Amended Complaint does not contain any further details regarding the

involvement of these Defendants with respect to this alleged harm. Therefore, it fails to state a claim as to these

Defendants as well.

12 The Amended Complaint is unclear as to which defendant(s) Plaintiff is bringing this claim, see ECF No. 17 at 23,

but the Court construes this claim against Olney based on the context of this section of the Amended Complaint.

Defendant Olney’s failure to provide Plaintiff with religious compliant alternatives, such

as the halal chicken patty, resulted in Plaintiff eating too much soy. Id. at 22. This soy intake

damaged Plaintiff’s health by increasing his heart attack risk. Id. at 23. Defendant Olney “knew or

should have known of the danger of eating too much soy.” Id.

i. First Amendment

The Free Exercise Clause of the First Amendment, which protects the free exercise of

religion, extends to prisoners and includes a right to meals that comport with religious

requirements. Ford v. McGinnis, 352 F.3d 582, 588, 597 (2d Cir. 2003); see also McEachin, 357

F.3d at 203-04. A claim under the Free Exercise Clause requires that “a plaintiff . . . show that he

has a sincerely held religious belief, that it was substantially burdened, and that defendants’

conduct was not reasonably related to some legitimate penological interest.” Barnes v. Furman,

629 F. App’x 52, 55 (2d Cir. 2015) (summary order). The courts should not “try to judge the

significance of particular devotional obligations to an observant practitioner of faith.” McEachin,

357 F.3d at 201. “Rather, a court should consider whether the plaintiff has ‘demonstrate[d] that

the beliefs professed are sincerely held and in the individual’s own scheme of things, religious.’”

DeJesus v. Bradt, 174 F. Supp. 3d 777, 784 (W.D.N.Y. 2016) (quoting Ford, 352 F.3d at 595).

“[A] substantial burden exists where the state put[s] substantial pressure on an adherent to

modify his behavior and to violate his beliefs.” Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996)

(quotation omitted) (alteration in original). “[C]ourts have generally found that to deny prison

inmates the provision of food that satisfies the dictates of their faith does unconstitutionally burden

their free exercise rights.” McEachin, 357 F.3d at 203; see Ford, 352 F.3d at 593–94 (Muslim

inmate’s free exercise rights substantially burdened if prison officials denied request for a meal to

celebrate Eid ul-Fitr feast); Holland v. Goord, 758 F.3d 215, 221–22 (2d Cir. 2004) (ordering

Muslim inmate practicing Ramadan to drink water for a urine sample during fast substantially

burdened free exercise rights); Torres v. Aramark, No. 14–CV–7498 (KMK), 2015 WL 9077472,

at *9–10 (S.D.N.Y. Dec. 16, 2015) (Muslim plaintiff’s allegations that he was forced to choose

between eating nutritionally adequate meals and complying with his religious fasting requirements

during Ramadan stated more than a de minimis violation). However, “[a]ll that is required for a

prison diet not to burden an inmate’s free exercise of religion is the provision of a diet sufficient

to sustain the prisoner’s good health without violating [his religion’s] dietary laws.” Muhammad

v. Warithu–Deen Umar, 98 F. Supp. 2d 337, 344 (W.D.N.Y. 2000).

If the Plaintiff has established a substantial burden, “[t]he defendants then bear the

relatively limited burden of identifying the legitimate penological interests that justify the

impinging conduct.” K.A. v. City of New York, 413 F. Supp. 3d 282, 295 (S.D.N.Y. 2019) (internal

quotation marks omitted). “Once defendants carry this burden of production, the burden remains

with the prisoner to show that these articulated concerns were irrational.” Id. (internal quotations

omitted).

Here, Plaintiff has colorably alleged that his sincerely held religious beliefs prevent him

from eating a diet that includes fish or meats prepared by non-Muslims. He has alleged that the

alternatives provided force him to choose between eating nutritionally adequate meals and

complying with the requirements of his faith. This sufficiently alleges a First Amendment claim

regarding Plaintiff’s diet at the pleading stage. The burden therefore shifts to Defendants to identify

a legitimate penological interest.

Defendants argue that Plaintiff has failed to adequately allege that Defendants substantially

burdened his free exercise of religion (an argument that fails), ECF No. 23-2 at 9, but they present

no legitimate penological interest for their failure to provide Plaintiff a diet that complies with his

beliefs. This failure is grounds for denial of a 12(b)(6) motion where Plaintiff has met his initial

burden. See K.A., 413 F. Supp. 3d at 296 (denying defendants’ motion to dismiss plaintiff’s free

exercise claim, because, “[t]o date, [d]efendants present no legitimate correctional interest to

warrant denying Plaintiffs’ religious accommodations. Therefore, [d]efendants failed to carry its

burden.”) (internal quotation omitted). Accordingly, Defendants’ motion to dismiss this claim is

DENIED.

ii. Eighth Amendment

“[T]he Eighth Amendment . . . require[s] that prisoners be served nutritionally adequate

food that is prepared and served under conditions which do not present an immediate danger to the

health and well being of the inmates who consume it.” Robles v. Couqhlin, 725 F.2d 12, 15 (2d

Cir. 1983) (internal quotation marks omitted). Like other Eighth Amendment claims, a “plaintiff

must satisfy both an objective test and a subjective test.” Jolly, 76 F.3d at 480 (citations omitted).

“[A] prisoner may prevail only where he proves both an objective element—that the prison

officials’ transgression was sufficiently serious—and a subjective element—that the officials

acted, or omitted to act, with a sufficiently culpable state of mind, i.e., with deliberate indifference

to inmate health or safety.” Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Farmer,

511 U.S. at 834) (internal quotation marks omitted).

Plaintiff’s allegations regarding Defendant Olney fail to allege that she acted, or omitted

to act with a sufficiently culpable state of mind. Indeed, the only allegations regarding the

subjective prong of an Eighth Amendment claim as to Olney are entirely conclusory: Defendant

Olney “knew or should have known of the danger of eating too much soy.” ECF No. 17 at 23.

Defendants’ motion to dismiss this claim is therefore granted and the claim is DISMISSED

WITHOUT PREJUDICE.

12. COVID-19 Claim

Finally, Plaintiff alleges that “Defendants Morley, Annucci, [and] Noeth are not taking any

preventive steps to prevent the wide-spread of COVID-19, among the most vulnerable population

over 65 years old, with underlying medical conditions like Heart Disease.” ECF No. 17 at 25.

Defendants have moved to dismiss this claim, ECF No. 23-2 at 16-22, citing numerous safety

measures undertaken by Attica in response to the COVID-19 Pandemic.

As discussed above, Eighth Amendment medical care claims are analyzed under the

“deliberate indifference” standard. “It is undisputed that COVID-19 is a highly dangerous disease

that poses a significant risk of severe illness and death[.]” Petitpas v. Griffin, No. 3:20-cv-00769

(JAM), 2020 WL 6826723, at *6 (D. Conn. Nov. 21, 2020) (citation and internal quotation marks

omitted). However, Plaintiff’s conclusory allegations fail to allege the subjective component of an

Eighth Amendment claim and contain no amplifying details regarding Defendants’ awareness that

COVID-19 preventative measures were not being followed. Allegations of such awareness is

necessary to sufficiently plead that these Defendants “acted recklessly despite knowing the

substantial risk that COVID-19 posed to [McFadden] and other inmates.” Cf. id. at *7 (allegations

that Warden “was aware of some inmates’ and officers’ refusal to wear masks as required by DOC

policy and did not take steps to protect inmates during an outbreak are sufficient for initial pleading

purposes.”). Accordingly, Defendants’ motion to dismiss Plaintiff’s Eighth Amendment claim

regarding COVID-19 preventative measures is granted and this claim is DISMISSED WITHOUT

PREJUDICE.

IV. Plaintiff’s Motions for Injunctive Relief

Plaintiff filed a Motion for Temporary Restraining Order regarding COVID-19, ECF No.

15, and a Motion for Temporary Restraining Order regarding retaliation, ECF No. 21. Preliminary

injunctive relief is intended to “prevent irreparable harm until the court has an opportunity to rule

on the lawsuit[’s] merits.” Gully v. Ogondo, Nos. 3:19-cv-612 (SRU), 2020 WL 1863276, at *2

(D. Conn. April 13, 2020).

Where a court grants a defendant’s motions to dismiss a plaintiff’s underlying claim related

to injunctive relief, a “plaintiff’s motions for injunctive relief will be denied as moot.” Troeger v.

Ellenville Cent. School Dist., No. 1:12–cv–1882 (DNH/CFH), 2014 WL 1302051, at *6 (N.D.N.Y.

Mar. 31, 2014); see also Steinmetz v. Cabrera, No. 17-CV-1000, 2018 WL 671282, at *2

(W.D.N.Y. Jan. 30, 2018) (“[B]ecause [plaintiff’s] claim is dismissed, the plaintiff’s letter motion

for preliminary injunctive relief as to this claim . . . is denied as moot.”). Therefore, because the

underlying claims supporting Plaintiff’s motions for injunctive relief have been dismissed,

Plaintiff’s Motion for Temporary Restraining Order as to COVID-19, ECF No. 15, and Motion for

Temporary Restraining Order regarding retaliation, ECF No. 21, are DENIED AS MOOT.

V. Plaintiff’s Motion for Summary Judgment

The Court turns next to Plaintiff’s Motion for Summary Judgment, ECF No. 37. While

Federal Rule of Civil Procedure 56 does not strictly prohibit filing motions for summary judgment

before an answer is filed and discovery is conducted, such action is reserved for “the rarest of

cases,” Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000), such as, for

example, where the case presents a pure question of law. See, e.g., Chachkes v. David, No. 20-cv-

2879 (LJL), 2021 U.S. Dist. LEXIS 5652, at *18 (S.D.N.Y. Jan. 12, 2021).

Here, the Court finds that summary judgment is premature and Plaintiff’s motion is

therefore DENIED WITHOUT PREJUDICE. See, e.g., Sanchez v. Nassau Cty., No. CV 17-7335

(JFB) (AKT), 2019 U.S. Dist. LEXIS 34160, at *12 (E.D.N.Y. Feb. 28, 2019) (denying pro se

motion for summary judgment as premature in similar circumstances); Turner v. Correct Care

Sols., No. 18 CV 3370 (VB), 2019 U.S. Dist. LEXIS 38712, at *2 n.4 (S.D.N.Y. Mar. 11, 2019)

(denying pro se motion for summary judgment as premature without prejudice to refile after

discovery).

VI. Plaintiff’s Motion to Consolidate Cases

“Rule 42(a) of the Federal Rules of Civil Procedure empowers a trial judge to consolidate

actions for trial when there are common questions of law or fact to avoid unnecessary costs or

delay.” Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir. 1990). “The trial court has broad

discretion to determine whether consolidation is appropriate.” Id.

On January 21, 2021, Plaintiff filed a Motion to Consolidate, ECF No. 38, in which he

seeks to consolidate this action with another pending action (16-CV-6105-FPG) he has before this

Court pursuant to Federal Rule of Civil Procedure 42(a). Plaintiff has moved to amend his

Complaint in 16-CV-6105 and has filed a motion to consolidate in that case. The Court will

consider the motion to consolidate in 16-CV-6105 after ruling on the motion to amend. The motion

to consolidate filed in this case is therefore DENIED.

VII. Plaintiff’s Motion to Effect Service

Plaintiff asks that the Court order the Clerk of Court “to have US Marshall to effect service

of Summons and Complaint upon Defendants J. Moore and J. Spangler.” ECF No. 40 at 1.

Summons were returned unexecuted as to Moore and Spangler, ECF No. 27, and the Attorney

General’s Office has informed the Court that attempts to locate these individuals have been

unsuccessful. ECF No. 23-1 at 3. As discussed above, the Court dismissed Plaintiff’s claims

against Defendants Moore and Spangler pursuant to under 28 U.S.C. § 1915A and 28 U.S.C. §

1915(e)(2)(B). Therefore, this motion is DENIED AS MOOT.

VIII. Plaintiff’s Motion to Compel Response to Valentin Order

Finally, Plaintiff seeks an order compelling the Attorney General’s Office to respond to the

Court’s Valentin order regarding Defendants Sgt. S. and Nurse M.Z. ECF No. 39. The allegations

in the Amended Complaint as to Nurse M.Z. are wholly conclusory. While Nurse M.Z. is listed in

Plaintiff’s enumerated causes of action, ECF No. 17 at 29-30, Nurse M.Z. is not mentioned in any

of the substantive allegations in Plaintiff’s Amended Complaint that support his claims.

Accordingly, the Court DISMISSES WITHOUT PREJUDICE all claims against Nurse M.Z.

pursuant to under 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B), and Plaintiff’s motion to

compel the Attorney General’s Office to further respond to the Court’s Valentin order as to Nurse

M.Z. is DENIED AS MOOT.

With respect to Defendant Sgt. S., the Attorney General’s Office has indicated that “[u]pon

information and belief, . . . Sgt. ‘S’ [was] not served and [has] not been identified.” ECF No. 23-1

at 3. As discussed above, Plaintiff has adequately stated claims against Sgt. S. Therefore, Plaintiff’s

motion is GRANTED insofar as the Court directs the New York State Attorney General’s Office

to attempt once again to ascertain the full name of Defendant Sgt. S. and provide an address at

which he or she can be served with the Summons and Amended Complaint. The Attorney General

need not undertake to defend or indemnify this Defendant at this juncture; this order merely

provides a means by which Plaintiff may properly serve them.

The Attorney General must provide the requisite information to the Court by March 22,

2021. Once this information is provided, the Clerk of Court will amend the summons and cause

the U.S. Marshals to serve this Defendant.

CONCLUSION

For the reasons above, Defendants’ Motion to Dismiss, ECF No. 23, is GRANTED IN

PART and DENIED IN PART.

The following claims may proceed: (1) Deliberate indifference claims against Defendants

Graf, Schunk, Bonning, and Williams regarding the failure to replace Pacemaker batteries within

5 years; (2) Deliberate indifference claims against Defendant Sgt. S. regarding forced discharge

from the hospital; (3) Excessive force claims against Defendant Sgt. S. regarding the use of

restraints; and (4) First Amendment claim against Defendant Olney regarding a diet that

adequately complies with Plaintiff’s religious beliefs. All other claims are DISMISSED

WITHOUT PREJUDICE, except for Plaintiff’s claims related to the failure to return him to ECMC

Cardiology for a Pacemaker follow-up appointment in 2012 which is DISMISSED WITH

PREJUDICE.

“Pursuant to the policy of providing pro se litigants with ‘every opportunity’ to put forth a

valid claim,” Lightner v. Wenderlich, 271 F. Supp. 3d 445, 457 (W.D.N.Y. 2017), Plaintiff is

granted leave to file a second amended complaint as to the claims dismissed without prejudice

within thirty (30) days of the filing of this Decision and Order. If Plaintiff does not file a second

amended complaint, those claims will be dismissed with prejudice. Plaintiff is advised that a

second amended complaint would completely replace all prior complaints in this action, and thus

it would “render[ ] [any prior complaint] of no legal effect.” Id. (citation omitted). Therefore,

Plaintiff’s second amended complaint must include all necessary allegations so that it may stand

alone as the sole complaint in this action. If Plaintiff does not file a second amended complaint,

the case will proceed against Defendants Graf, Schunk, Bonning, Williams, Sgt. S. and Olney with

the causes of actions enumerated at the outset of this section.

Plaintiff’s Motions, ECF Nos. 15, 21, 30, 33, 37, 38, and 40 are DENIED. Plaintiff’

Motion to Compel, ECF No. 39, is GRANTED IN PART and DENIED IN PART.

The New York State Attorney General’s Office is directed to ascertain the full name of

Defendant Sgt. S. or “__S, Sergeant ACF-DOCCS” and provide an address at which he or she can

be served with the Summons and Amended Complaint. The Attorney General must provide the

requisite information to the Court by March 22, 2021.

The New York State Attorney General’s Office is directed to file via the electronic case

docket a copy of the September 10, 2020 Declaration in opposition to Plaintiff’ s Motion for Default

Judgment as soon as practicable.

SO ORDERED.

LAE

han P. Geraci, Jr. //

Chief United States District Judge

DATED: February 9, 2021

Rochester, NY

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