Tolbert v. Sullivan

UNITED STATES DISTRICT COURT KO Se CO,

WESTERN DISTRICT OF NEW YORK amssse

APR 29 2021

TT FT TSS

DEMERIS TOLBERT, Le onus os

Plaintiff,

V. 19-CV-1691-JLS

ANN MARIE T. SULLIVAN, et al.,

Defendants.

DECISION AND ORDER

Pro se Plaintiff Demeris Tolbert, a prisoner currently confined at Five Points

Correctional Facility, brings this civil rights action seeking relief under 42 U.S.C.

§ 1983. He alleges that Defendants violated his rights under the First, Eighth, and

Fourteenth Amendments to the United States Constitution during his incarceration

at Upstate Correctional Facility (“Upstate”), Attica Correctional Facility (“Attica”),

Southport Correctional Facility (“Southport”), and Five Points Correctional Facility

(“Five Points”).

As discussed below, because the claims related to Tolbert’s Upstate

confinement are based on wrongdoing alleged to have occurred in the geographical

confines of the Northern District of New York, they are severed and transferred to

the United States District Court for the Northern District of New York.

With respect to Tolbert’s remaining claims, this Court previously granted

him leave to proceed in forma pauperis and screened his original Complaint (Dkt. 1)

for sufficiency. Several claims were dismissed with leave to replead. Dkt. 23.

Currently before the Court is Tolbert’s Amended Complaint (Dkt. 30), which is also

subject to initial review under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a). For the

reasons stated below, certain claims shall proceed to service and others are

dismissed with prejudice.

DISCUSSION

I. Northern District Claims

Rule 21 of the Federal Rules of Civil Procedure permits the Court to sever

any claim against a party and proceed with that claim separately. Fed. R. Civ. P.

21. In deciding whether to sever a claim, a court should consider the following

factors:

(1) whether the claims arise out of the same transaction or occurrence;

(2) whether the claims present some common questions of law or fact;

(3) whether settlement of the claims or judicial economy would be

facilitated;

(4) whether prejudice would be avoided if severance were granted; and

(5) whether different witnesses and documentary proof are required for

the separate claims.

Rodriguez v. Winski, 973 F. Supp. 2d 411, 430 (6.D.N.Y. 20138) (quoting In re Merrill

Lynch & Co., Inc. Research Reports Sec. Litig., 214 F.R.D. 152, 155 (S.D.N.Y. 2003)).

Although Tolbert has chosen to bring his case in this District, the operative

facts underlying the claims against several Defendants did not occur here. Dkt. 30

at 33-39; see Keitt v. New York City, 882 F. Supp. 2d 412, 459 (S.D.N.Y. 2011) (A

plaintiffs “choice of forum is accorded less deference . . . where plaintiff does not

reside in the chosen forum and the operative facts did not occur there.”). Where the

administration of justice “would be materially advanced by severance and transfer,

a court may properly sever the claims against one or more defendants for the

purpose of permitting the transfer of the action against other defendants.” Cain v.

New York State Bd. of Elections, 630 F. Supp. 221, 225-26 (E.D.N.Y. 1986) (citing

Wyndham Assocs. v. Bintliff, 398 F.2d 614, 618 (2d Cir. 1968)). A decision to sever

“lies within the discretion of the Court.” Id. at 225.

Tolbert’s claims related to wrongdoing alleged to have occurred in the

Northern District of New York are more appropriately heard in that district. Those

claims are separate and distinct from the claims arising out of alleged wrongdoing

in the Western District during Tolbert’s incarceration, and will largely require

different witnesses and documentary proof. The remaining factors also support

severance.

Therefore, pursuant to Federal Rule of Civil Procedure 21 and 28 U.S.C. §

1404(a), the claims arising in the Northern District of New York, along with the

Defendants associated with them, are severed from this action. Accordingly,

Defendants John Doe Psychiatrist, Corrections Officer (“CO”) Simmons, and CO

Crossman, and all claims against them are severed and transferred to the Northern

District. Dkt. 30 at 33-39.

II. Western District Claims

A, Legal Standard

Section 1915 “provide[s] an efficient means by which a court can screen for

and dismiss legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.

2007) (citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The court shall

dismiss a complaint in a civil action in which a prisoner seeks redress from a

governmental entity, or an officer or employee of a governmental entity, if the court

determines that the action (1) fails to state a claim upon which relief may be

granted, or (2) seeks monetary relief against a defendant who is immune from such

relief. See 28 U.S.C. § 1915A(b)(1)-(2).

In evaluating a complaint, the court must accept all factual allegations as

true and must draw all inferences in the plaintiff's favor. See Larkin v. Savage, 318

F.3d 138, 189 (2d Cir. 2003) (per curiam); King v. Simpson, 189 F.3d 284, 287 (2d

Cir. 1999). “Specific facts are not necessary,” and a plaintiff “need only ‘give the

defendant fair notice of what the .. . claim is and the grounds upon which it rests.”

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (internal quotation marks and citation omitted); see also

Boykin v. Keycorp, 521 F.3d 202, 213 (2d Cir. 2008) (“[E]ven after Twombly,

dismissal of a pro se claim as insufficiently pleaded is appropriate only in the most

unsustainable of cases.”). 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 (2d Cir. 2004).

To state a valid claim under 42 U.S.C. § 1983, “the plaintiff must allege that

the challenged conduct (1) was attributable to a person acting under color of state

law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the

Constitution or laws of the United States.” Whalen v. County of Fulton, 126 F.3d

400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir.

1994)). Section 1983 itself creates no substantive rights; “it provides only a

procedure for redress for the deprivation of rights established elsewhere.” Sykes v.

James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471

U.S. 808, 816 (1985)).

To establish liability under Section 1983, a plaintiff must allege that

individual’s personal involvement in the alleged constitutional violation; it is not

enough to assert that the defendant is a link in the chain of command. See

McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004); Colon v. Coughlin, 58 F.3d

865, 873 (2d Cir. 1995). Moreover, the theory of respondeat superior is not available

in a Section 1988 action. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003).

There is no “special rule for supervisory liability.” Tangreti v. Bachmann, 983 F.3d

609, 612 (2d Cir. 2020). Instead, a plaintiff must plead and prove that “each

Government-official defendant, through the official’s own individual actions, has

violated the Constitution.” Jd. (internal quotation marks omitted) (citing Ashcroft v.

Iqbal, 556 U.S. 662, 676 (2009)).

B. The Amended Allegations!

Tolbert brings several claims against more than 100 Attica and Southport

correction officers (“COs”), staff members, and supervisors in the New York State

The recitation of facts is drawn from the Amended Complaint, the contents of

which must be accepted as true for purposes of initial review. See Erickson, 551

USS. at 93-94.

Department of Corrections and Community Supervision (“DOCCS”). See generally

Dkt. 30. Liberally construed, the Amended Complaint alleges unconstitutional

conditions of confinement while Tolbert was incarcerated at Attica and Southport,

as set forth in more detail below.

1. Attica Allegations

After several years in DOCCS custody, Tolbert arrived at Attica on January

19, 2018. Dkt. 30 at 39. An Attica correction officer, CO Dusza, immediately

started harassing and threating Tolbert, telling him “that he was going to get

punished for... grabbing that officer’s handgun during that medical trip at”

Upstate Correctional Facility. Jd. In the following weeks, Dusza would

“occasionally deny [Tolbert] access to showers, cleaning supplies and recreation,”

and “certain food items” would be missing from Tolbert’s food tray when Dusza was

working in Tolbert’s area. Id. at 39-40. COs Reddien and Norton advised Tolbert

that filing grievances against the prison staff “would only make matters wors[e].”

Id. at 40. In August 2018, Superintendent Noeth assured Tolbert that he would

take care of the denial of showers and cleaning products and, from then on, Dusza

stopped denying Tolbert showers, cleaning supplies, and recreation. Id.

Nonetheless, in November 2018, Tolbert overheard Dusza loudly state to

Defendant Clary, the Deputy Superintendent of Security, that “Tolbert has a

problem” and Clary then refer to “Tolbert” repeatedly over the telephone. Id. at 41,

82. The next day, Dusza claimed that he had a copy of Tolbert’s “rap sheet” and

other related documents, and noted that Tolbert had prior charges. Id. at 41-42.

Defendants Dusza, Robin, Norton, Scheusslers?, James, and Ellis made false

accusations against Tolbert, including accusations that are Tolbert says are “the

quickest way to get an inmate hurt or killed” by other inmates. Jd. at 42. After

that, every CO working in the SHU would call Tolbert “no good,” among other

names. Id. at 43, 83. Tolbert filed a grievance complaining that certain documents

were being released to the staff, and Attica Superintendent Noeth agreed to look

into the matter at Tolbert’s request. Id. at 44.

Tolbert states that the officers’ “disrespectful” name calling “automatic[ally]”

puts an inmate’s “life in grave danger.” Id. Tolbert’s food and commissary items

also went missing, and “after weeks of being psychologically tortured,” Tolbert

“decided that he would rather die or kill a” CO than continue enduring it. Jd. After

having “a panic attack” on January 16, 2019, Tolbert made a “spear gun” and

stabbed CO Rasmussen. Id. at 45. Tolbert was then stripped searched, provided

with only a green hospital gown and two large “smock” blankets, and placed in “a

contraband watch room” in Attica’s hospital area. Id. at 45-46. He was not

provided with toilet paper, towels, sheets, wash rag, toothpaste, toothbrush,

cleaning supplies, or clothes. Jd. at 46. Tolbert was not allowed to urinate or

defecate until the sergeant arrived, and he was required to have two or three “clean

defecation[s]” before he could be returned to his SHU cell. Id.

Defendants CO John Does 1-45, who were assigned to Tolbert’s watch room,

recorded Tolbert’s activities, aided CO John Doe #46 in spraying an unknown

2 The spelling of this Defendant’s name varies throughout the pleadings.

chemical into Tolbert’s room through the vent, and caused Tolbert to defecate on the

watch room floor when the sergeant’s arrival was delayed. Id. at 48-50. Tolbert

was also mocked by these COs while they denied him a shower, use of a urine

bucket, tooth brushing, and clothing. Id. at 50-51. They further “allowed John Doe

[#46] to sit next to them while he climb[ed] in” and out of Tolbert’s watch room

“vent” for “15 days straight” and spray the room with an “unknown chemical agent.”

Id. (parenthesis omitted). These COs, along “with other unknown officers” would

line up “next to” the watch room door and threaten to throw tear gas “so they could

kill [Tolbert].” Jd. at 51.

Tolbert provided 10 to 12 clean defecations, more than the two to three

required, yet he was forced to remain in the watch room from January 16, 2018 to

approximately February 29, 2018. Id. at 52. CO Doe #46, however, continued to

subject Tolbert to the chemical spray until Tolbert was transferred out of Attica on

March 28, 2018. Id. at 52-53. A few days after Tolbert was placed in the watch

room, he “fell unconscious” due to the chemical spray and was rushed to the Attica

hospital by stretcher. Jd. at 58. As he started to regain consciousness, Defendant

CO James directed the nurse to give him “a cloth with some type of chemical so that

he could smother plaintiff to death.” Id. James did not follow through, however,

and Tolbert later learned that he was being mocked. Id. at 54.

Tolbert spoke via telecom with a doctor about the chemical spray and death

threats, and the doctor ordered that he be placed in a hospital room. Jd. at 54-55.

The COs, however, “brought [him] back to the same watch room,” and Tolbert asked

Nurse Nelson to accompany them out of fear for his life. Jd. at 55. Upon Tolbert’s

return to the watch room, CO John Doe #463 crawled back into the vent and

continued to spray. Id.

When Tolbert was finally seen by Nurse Practitioner (“NP”) Graf and another

nurse (after he refused to remove his arm from the food slot hatch in protest), she

smelled the chemical spray as soon as she entered the room. Id. at 56. The prison

imam arrived during Grafs examination and, although Tolbert told him that he was

being “tortured” and “sprayed,” the imam did nothing to help. Id. at 56-57. After 65

days of being “tortured,” Tolbert again raised these complaints to the imam, who

took notes but no action. Id. 57-58.

When Tolbert attempted to speak to Superintendent Noeth about his

conditions of confinement, Noeth replied: “Don’t talk to me after you had assaulted

one of my officers.” Id. at 58-59. Noeth then signed the watch room logbook and

walked off. Id. at 59. After being returned to his regular SHU cell and speaking to

Noeth on four separate occasions, Tolbert continued to be denied showers, hot

water, toothpaste and a toothbrush, sheets, clothes, towels, headphones, mail, and

all property. Id.

Sgt. Long issued a misbehavior report against Tolbert for the aforementioned

food slot incident. Jd. at 60. Tolbert informed Long that he was being denied a

toothbrush, toothpaste, hygiene supplies, and the urine jug. Jd. Long had Tolbert

3Although it is unclear whether more than one individual participated in the

alleged spraying, the accused will be referred to as John Doe #46 throughout this

Order. See id. at 738.

moved to another watch room; however, five or ten minutes after Plaintiffs arrival,

CO John Doe #46 climbed back in the vent and said, “SHHHHH, SHHHH, SHHHH,

Die, Die, Die.” Jd. at 60-61. Long participated in falsifying the watch room logs to

keep Tolbert on watch even after he had the required number of defecations. Jd. at

61. Tolbert notified Deputy Superintendent Wilcott that he was being sprayed,

denied all hygienic supplies, and held in the watch room longer than necessary, but

she responded that he needed two to three clean defecations and left. Id. at 61-62,

63. Watch room officers began giving Tolbert the urine jug more frequently and

provided a water bucket to clean up the urine. Id. at 62-63.

Tolbert advised Wilcott repeatedly that he was been denied most necessities,

including, but not limited to, showers, clothes, all property, hot water, towels,

blanket, sheets, and cleaning supplies, but no action was taken. Id. at 63. Tolbert

also continued to complain to NP Graf about the ongoing chemical spray in the

“extremely cold” watch room and his resulting chest pains, dizziness, and

stomachaches. Id. at 64. NP Graf did nothing, even though she was aware that

other nurses were coughing within a few feet of Tolbert’s watch room. Jd. at 64-65.

At some point during his watch room confinement, Tolbert “fell unconscious”

and was “rushed” to the Warsaw Hospital Emergency Room (“ER”). Id. at 65. The

ER nurse advised the prison staff that the doctor wanted to keep Tolbert in the

hospital for a few days, but Superintendent Noeth wanted him sent back to Attica.

Id. at 67. EMT John and Jane Does removed Tolbert’s tubes and transported him,

semi-conscious, back to Attica without further examination. Id. at 68. After

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returning from the hospital, Tolbert continued to be sprayed with chemicals, and

Graf stopped responding to his requests for medical care. Id. at 65-66.

While returning from the hospital, Tolbert was removed from his wheelchair

by Sgt. John Doe and two other John Doe COs and had to walk in the freezing cold

weather in full restraints. Jd. at 69. Superintendent Noeth sent Tolbert back to the

same cold, “stinking” contraband room instead of putting him in a hospital room

during his recovery. Id. Tolbert advised Defendant Clinton on numerous occasions

that he was being denied all clothing, showers, property, mail, sheets, recreation,

headphones, and hygiene products, but Clinton took no action. Jd. at 70-72.

Clinton also viewed Tolbert’s “empty” cell. Jd. at 71. Clinton took notes regarding

the chemical spray because other SHU inmates had made complaints and

experienced chest pains. Jd. at 72-73.

Nurse Jane Doe (identified as Defendant #62), worked on the watch room

floor during Tolbert’s last week, and he saw her coughing, making jokes about the

chemical spray, and sitting next to John Doe #46. Id. at 74-75. She also witnessed

the watch room COs line up for mock drills six times, pretending to rush into his

cell without actually entering. Id. at 75-76. Tolbert was sprayed with chemicals in

the watch room for a total of 15 days and then sprayed in his SHU cell for an

additional 60 days. Jd. at 73. He experienced sleep deprivation, chest pains, two

hospitalizations, and lasting psychological damage, among other injuries, as a

result. Id. at 74.

11

From about February 1, 2018 to late March 2018, COs Norton, Ellis, Robin,

Scheusslers, and James denied Tolbert clothing (except a green smock), hot water,

soap, cleaning supplies, his personal property, sheets/blanket, “legal work,”

footwear, recreation, mail, towels, toothbrush, toothpaste, and headphones. Jd. at

77-78. Another CO John Doe denied Tolbert showers from January 16 to late

March 2018. Id. at 78-79. Tolbert’s mental health counselor, Ms. Hayes, to whom

he spoke daily, was aware of his conditions, the chemical spray, and denial of

showers, but she failed to take any action. Jd. at 80-82. Clary, to whom Tolbert

also spoke about his conditions of confinement, “said [that] he would look into it,”

but also took no action on Tolbert’s behalf. Id. at 85.

From November 1, 2018 to March 2019, Clary, Norton, James, Ellis, Robin,

and Scheusslers would gather around the morning mail and loudly discuss Tolbert’s

legal mail. Jd. at 83. James, Robin, Norton, or Ellis failed to put Tolbert’s outgoing

mail in the mailbox on a few occasions, despite stating that they had. Jd. at 84. On

at least two occasions, Dusza gave Tolbert’s mail to another inmate. Jd. Attica’s

religious leaders, the imam, the pastor, and the Nation of Islam (“NOI”) chaplain,

who each visited Tolbert’s cell on two or three occasions, also failed to act “when

they saw for themselves” that he was being sprayed with a chemical agent and

denied all “human necessities.” Id. at 86-87.

Tolbert spoke to Attica Mental Health Deputy Director Jane Doe about his

unconstitutional living conditions and nonstop harassment on two or three

occasions, and she observed his empty cell and lack of clothing. Jd. at 88. At one

12

point, Tolbert made a threatening remark, and she reported the threat to security

but took no action concerning his conditions. Id. at 88-89. Tolbert spoke to the

Attica Acting Assistant Deputy of Administration two or three times and, “just like

of the Defendants[,] he took written notes but did nothing and the torture and

abuse continued.” Id. at 89-90.

2. Southport Allegations

Defendant Clary “had officers at Southport,” and they continued to release

Tolbert’s documents, make death threats, and continuously tell Tolbert to “SHHH,

SHHH, SHHH” over the SHU intercom and radio. Id. at 90. Tolbert wrote a letter

complaining to Defendants Picolo, Benettizzi, and Annucci complaining about

Southport’s policy of restraining all incoming level one SHU inmates, regardless of

whether they are considered violent, “in a secured steel recreational cage” for 30

days. Id. at 91-92. The inmates are denied written notice of this restraint and the

ability to appeal. Id. at 92-93. Tolbert was on level one restraint for 150 days, and

only Picolo and Annucci responded to his letter. Jd. at 98. Picolo denied Tolbert all

personal property, legal mail, and photos for approximately one year. Id. at 94.

Upon filing a claim for the property, Tolbert received only some items after one to

three months and was told that the rest was lost. Id. However, when Tolbert was

transported to Five Points on March 9, 2020, he received all the property that was

withheld during his Southport confinement. Id. at 95.

Upon arrival at Southport, Tolbert realized that Clary ordered Southport

officials to continue his “smear campaign” and torture tactics. Id. at 96. After two

13

weeks, Tolbert was moved to B gallery and unknown officer John Doe (3:00 PM to

11:00 PM shift) went into another inmate’s cell, stated that Plaintiff was “no good,”

and handed the inmate what Tolbert believed to be sealed documents related to his

criminal history. Id. at 96-97. John Doe later offered certain inmates $300.00 to

$400.00 to “hurt” Tolbert “on video and audio.” Id. at 97. Tolbert was tormented for

two months by the officer saying “SHHH” repeatedly in the wall radio. Jd. at 98.

He then advised two mental health counselors, Mr. Kress and Ms. Allen, about the

threats and that he had a weapon in his cell. Jd. The aforementioned John Doe

continued to try to bribe inmates to harm Tolbert, while another John Doe (D-Block

11:00 PM to 7:00 AM shift) made accusations about Tolbert every morning in front

of the SHU inmates. Id. at 99.

When Tolbert went to Wyoming County Court on criminal charges for

assaulting CO Rasmussen, he told Investigator Jane Doe that he was being tortured

by the Attica and Southport staff. Id. at 101-02. Tolbert also spoke about these

issues to an Albany mental health department employee, John Doe, but “nothing

was done.” Id. at 102. Tolbert repeatedly told Sergeant Moore that his staff,

including CO Mosher, made accusations about Tolbert while escorting him back and

forth from recreation. Jd. at 103.

On June 9, 2019, Tolbert tried to cut Mosher with two homemade razors, but

Mosher and Vaughan were able to restrain Tolbert on the ground, and they later

falsified a misbehavior report by describing him as having only one weapon. Id. at

104-05. By falsifying the report, they were able to keep the incident quiet and

14

continue to “torture” Tolbert in D- Block. Jd. at 105-06. On October 1, 2019, Tolbert

stabbed CO Vanderpool in the abdomen with a homemade icepick. Jd. at 106.

With respect to Tolbert’s medical needs, he arrived at Southport with a

medical permit for a knee brace. Jd. at 107. He was examined by an orthopedic

specialist in 2017, and he takes “Cymbalta for pain” and has medical boots due to

injuries and deformities in both feet from prior gunshot wounds. Id. at 107-08. He

has permanent “metal rods in” his “hip, femur and knee area with torn arteries

[and] tarsal tunnel syndrome in [his] left ankle.” Jd. at 107. Tolbert was seen by

PA Oaks on four occasions between March 15 and December 12, 2019 and requested

a leg brace during that time. Jd. at 108. Oaks did not “see a medical necessit[y] for

[the] leg brace” and denied Tolbert’s request. Id. Oaks also denied Tolbert’s

“prescribed knee brace” for approximately nine months. Id. at 108-09. Tolbert is

“partially disable[d],” and can “work but to a minimum”; he cannot use stairs or sit

“for long periods of time.” Jd. at 110.

From July to December 2019, Oaks denied Tolbert prescription eyeglasses,

which he needed due to vision damage caused by the excessive lighting in his cell

from 7:00 A.M. to 10:30 P.M. each day. Jd. at 111, 117-19. He experienced “blurry

vision,” headaches, and “seeing white and dark spots occasionally,” in addition to

eye pain, for which he requested medication. Jd. On December 9, 2019, Tolbert was

seen by an eye doctor who found “some eye damage” and referred him to an

ophthalmologist, who confirmed the damage. Id. at 111-12, 119. Tolbert was finally

15

taken to Elmira Correctional Facility after he was denied access to the eye doctor

for seven to eight months “straight.” Jd. at 113.

Further, although Tolbert also “suffers from an unknown” food allergy and

“has other stomach issues with digestion,” Oaks denied his “prescribed...

controlled” diets. Id. at 113-14. Tolbert had stomach surgery in 2017 or 2018 and

was prescribed three “stomach medications,” which he has been taking ever since.

Id. at 114. Oaks would not order the controlled diet until Tolbert “was first seen by

[a] gastro-specialist,” which he did on December 9, 2019. Jd. at 115-16.

Tolbert was seen by Dr. Siddiqi, a psychiatrist, in May and June 2019, and he

described the panic attacks, paranoia, anxiety, and violent behavior caused by being

exposed to COs that he had previously attacked. Id. at 120-21. Dr. Siddiqi

responded: “What do you want from mental health?” and failed to prescribe any

“psycho-tropic medications or programming.” Jd. at 121. “As a result,” a few weeks

later, Tolbert “stabbed two correctional officers on two separate occasions and one”

could have lost “his life.” Id.

Tolbert was seen by another psychiatrist in November 2019, and while Dr.

Gonzalez did prescribe psychiatric medications, he failed to address Tolbert’s need

for a mental health program or recommend a “a safer environment.” Id. at 123-24.

Tolbert was also found incompetent to stand trial in Wyoming County Court at this

time and was denied psychiatric care despite needing to be sent to a psychiatric

hospital at the time of this finding. Jd. at 124-25. Tolbert’s mental health

counselor, Mr. Kress, treated Tolbert during 20 private sessions and received “over

16

a half-dozen letters concerning” Tolbert’s treatment at Southport but refused to

help him. Jd. at 126-30.

Tolbert also spoke to the SHU counselor, Mr. Micheler, on a regular basis,

and although he was aware that Tolbert was being “tortured,” Micheler “hadn’t

heard” about Tolbert assaulting Mosher and Vanderpool and “continued to say” that

Southport was Tolbert’s “last stop.” Jd. at 1383-36. Micheler failed to act, file a

complaint on Tolbert’s behalf, or inform Albany of the situation even after Tolbert

was involved in four separate staff assaults. Id. at 1385-37. Micheler did, however,

file a misbehavior report against Tolbert for stating that “he would defend himself if

need be.” Jd. at 1387-38.

Tolbert had “no other alternative but to refuse” to be interviewed by the

Inspector General about his complaints because “once an inmate is labelled (called)

‘no good’ by staff, if an inmate does speak to an Inspector General, they

automatically will be signing their death certificate while in prison.” Jd. at 133.

3. Five Points Allegations

Upon his transfer from Southport to Five Points, Tolbert’s prescribed

controlled diet was approved by the Five Point doctor; however, it was later denied

by the “civilians who control[{] the mess hall,” Food Administrator John/Jane Doe.

Id. at 141-43. The mess hall supervisors “claimed that they did not receive the first

diet request form that was signed and approved by Dr. Wright” on August 31 or

September 1, 2020. Id. at 143. In mid-September, the medical staff spoke to the

mess hall supervisor and Tolbert received his prescribed diet for two or three days

17

before it was cancelled by the supervisor. Id. at 144-46. Even after Dr. Wright

changed the diet form language at the mess hall supervisor’s request, Tolbert

alleges that he was denied his medical diet for the seven months prior to filing his

complaint. Id. at 147-48. Tolbert’s follow-up appointment with the gastro-specialist

had to be cancelled due to the COVID-19 pandemic. Id. at 149.

C. Constitutional Claims

1. Retaliation

It is well settled that prison officials may not retaliate against prisoners for

exercising their constitutional rights. See generally Mt. Healthy City Sch. Dist. Bd.

of Educ. v. Doyle, 429 U.S. 274, 287 (1977). To state a Section 1983 retaliation

claim, a prisoner must present allegations that (1) he was engaged in

constitutionally protected conduct, and (2) the punishment imposed by the prison

official was motivated by this protected conduct. See 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 over the institutions they manage.” Lowrance v. Achtyl, 20

F.3d 529, 535 (2d Cir. 1994) Gnternal quotation marks omitted). Courts have

recognized that prison retaliation claims are prone to abuse with respect to any

decision that a prisoner may dislike. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d

Cir. 1988), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506

(2002)).

18

This Court previously concluded, in its July 24, 2020 Decision and Order,

that Tolbert’s retaliation claims were wholly conclusory and lacking any indication

that the actions of the accused were motivated by protected conduct. Dkt. 28, at 15.

The Amended Complaint fails to correct the Original Complaint’s deficiencies and

the retaliation claims are now dismissed with prejudice.

2, Conditions of Confinement and Failure to Protect

The Eighth Amendment requires prison officials to take reasonable measures

to guarantee the safety of inmates in their custody. Farmer v. Brennan, 511 U.S.

825, 832 (1994). The assessment of whether those measures are reasonable is based

on two factors. First, “the inmate must show that he is incarcerated under

conditions posing a substantial risk of serious harm.” Jd. at 834. Second, prison

officials must be shown to have demonstrated a deliberate indifference to the

inmate’s safety. Id. Deliberate indifference must be measured subjectively, that is,

a prison official cannot be found liable under the Eighth Amendment. .

. unless the official knows of and disregards an excessive risk to [the]

inmate[‘s] 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. at 837.

Tolbert’s Amended Complaint alleges sufficient facts to plead a claim of cruel

and unusual punishment due to conditions of confinement, which denied Tolbert

“the minimal civilized measure of life’s necessities.” See Wilson v. Seiter, 501 U.S.

294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). These facts

also satisfy the subjective prong of Tolbert’s claim. Thus, conditions of confinement

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claims shall proceed to service against the following Defendants: CO John Doe #46

(spraying chemical agent); Sgt. John Doe and CO John Does (forcing Plaintiff out of

his wheelchair to walk in freezing weather); the watch room CO John Does (freezing

temperature and denial of toilet/urine jug, supplies, and showers (Dkt. 30 at 47-53));

John Does (non-watch room denial of showers, see id. at 5) and Dusza, Wilcott,

Long, James, Ellis, Robin, Scheusslers, and Norton (denial of property, mail,

hygiene/cleaning supplies, clothes/covers, and showers).

Turning to Tolbert’s failure-to-protect claims, it is well settled that “all law

enforcement officials have an affirmative duty to intervene to protect the

constitutional rights of citizens from infringement by other law enforcement officers

in their presence.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994); see also

Matthews v. City of New York, 889 F. Supp. 2d 418, 444 (E.D.N.Y. 2012) (“Because

plaintiffs properly allege at least one constitutional violation, plaintiffs are entitled

to discovery to determine which officers participated directly in the alleged

constitutional violations and which officers were present and failed to intervene.”).

Based on their involvement as described in the allegations presented above, Tolbert

has stated failure-to-protect claims sufficient to proceed to service against

Defendants Noeth, Clary, Clinton, Wilcott, Long, NP Graf, Attica Imam John Doe,

Nurse Jane Doe (Dkt. 30 at 74-76 (watch room)), Acting Assistant Deputy of

Administration John Doe, and Southport CO John Doe (bribing inmates to hurt

Tolbert).

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3. Deliberate Indifference to Serious Medical and

Mental Health Needs

The Second Circuit has noted that medical conditions vary in severity” and “a

decision to leave a condition untreated will be constitutional or not depending on

the facts of the particular case.” Harrison v. Barkley, 219 F.3d at 132, 136-37 (2d

Cir. 2000) (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). For

medical care to be so inadequate as to amount to the cruel or unusual punishment

prohibited by the Eighth Amendment, a plaintiff must allege that the defendant’s

actions or omissions amounted to “deliberate indifference to serious medical needs.”

Estelle v. Gamble, 429 U.S. 97, 107 (1976).

The first component of such a claim requires that a plaintiffs medical

condition be objectively serious. 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, 219 F.3d at 136 (internal

quotation marks omitted); Banks v. Mannoia, 890 F. Supp. 95, 99 (N.D.N.Y. 1995)

(“The serious medical need requirement contemplates a condition of urgency, one

that may produce death, degeneration, or extreme pain.”) (citing Archer v. Dutcher,

733 F.2d 14, 16-17 (2d Cir. 1984)).

The second component is subjective and requires a plaintiff to allege that the

prison official had actual knowledge of his serious medical needs but was

deliberately indifferent thereto. See Brock v. Wright, 315 F.3d 158, 164 (2d Cir.

2003); Hathaway v. Coughlin, 37 F.3d 68, 66 (2d Cir. 1994). It is well-settled that

“not every lapse in prison medical care will rise to the level of a constitutional

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violation.” Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003). In addition, if the

treatment provided is adequate, “mere disagreement over the proper treatment does

not create a constitutional claim.” Chance, 143 F.3d at 703. In the context of

mental health needs, “propensities to attempt suicide, harm oneself, and/or exhibit

severe depression or anxiety attacks have been viewed as sufficiently serious.”

Young v. Choinski, 15 F. Supp. 3d 194, 199 (D. Conn. 2014) (internal quotation

marks omitted) (citing Barnes v. Ross, 926 F. Supp. 2d 499, 506 (W.D.N.Y. 2013)).

There must be proof that the prison official had knowledge of the risk to the

plaintiff. See Young, 15 F. Supp. 3d at 199.

Assuming Tolbert’s allegations to be true at this stage of the litigation, see

Erickson, 551 U.S. at 94, his denial of medical and mental health care claim shall

proceed to service against Defendants NP Graf, Oaks, Dr. Siddiqi, Dr. Gonzalez,

Attica Mental Health Deputy Director Jane Doe, Ms. Hayes, Mr. Kress, Mr.

Micheler, and Five Points Food Administrator John/Jane Doe.

4, Conspiracy

To the extent that Tolbert alleges that Defendant Clary conspired with Attica

and Southport, because the Amended Complaint contains “only conclusory, vague,

or general allegations of conspiracy,” this claim must be dismissed. Sommer v.

Dixon, 709 F.2d 173, 175 (2d Cir. 1983), cert. denied, 464 U.S. 857 (1983); see also

Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993). Tolbert was advised in this

Court’s July 24, 2020 Decision and Order that he must present “facts demonstrating

an agreement among two or more persons’ to deprive him of his rights. James v.

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Artuz, No. 93 CIV. 2056 (LMM), 1998 WL 50206, at *5 (S.D.N.Y. Feb. 6, 1998)

(citing Whitfield v. Forest Elec. Corp., 772 F. Supp. 1350, 1352 (8.D.N.Y. 1991)); see

also Dkt. 23, at 23-24. As he has failed to do so in the amended pleadings, his

conspiracy claim must be dismissed.

Moreover, the doctrine of intracorporate conspiracy “bars conspiracy claims

against employees of entities such as DOCCS (when those employees are alleged to

have conspired solely with each other) unless, pursuant to the doctrine’s scope of

employment exception, the employees were pursuing personal interests wholly

separate and apart from the entity by whom they were employed.” Richard v.

Fischer, 38 F. Supp. 3d 340, 353 (W.D.N.Y. 2014) (internal quotation marks

omitted) (collecting cases). The amended allegations fail to present an exception to

this doctrine. Tolbert’s conspiracy claim, therefore, is dismissed with prejudice.

5. Due Process

Tolbert asserts that Southport’s Level I restraint policy for 30 days upon

admission violated his due process rights. This claim is dismissed.

To prove a violation of due process, “a plaintiff must establish that (1) he

possessed a liberty interest and (2) defendants deprived him of that interest without

sufficient process.” Walker v. Fischer, 523 F. App’x 43, 44 (2d Cir. 2013) (summary

order). An inmate’s protected liberty interest is implicated only where the conduct

at issue imposes an “atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).

23

This Court has held that a plaintiff “cannot state a due process violation

based on the application of mechanical restraints as Plaintiff had no liberty interest

in remaining free of such restraints so as to trigger due process protections.”

Goodwin v. Hungerford, No. 12-CV-00362A F, 2014 WL 1219050, at *4 (W.D.N.Y.

Mar. 24, 2014), report and recommendation adopted, No. 12-CV-362, 2015 WL

1431675 (W.D.N.Y. Mar. 27, 2015) (citing Brown v. Coughlin, No. 93-CV-0633E(H),

1995 WL 643349, at *3 (W.D.N.Y. Oct. 18, 1995) (finding that placing an inmate in

mechanical restraints does not impose the “atypical and significant hardship”

envisioned in Sandin) (cited by Ruggiero v. Fischer, No. 15-CV-00962-RJA-JJM,

2018 WL 7892966, at *5 (W.D.N.Y. Sept. 27, 2018), report and recommendation

adopted sub nom. Ruggiero v. Fisher, No. 15-CV-962-A, 2019 WL 1438810

(W.D.N.Y. Apr. 1, 2019), aff'd sub nom. Ruggiero v. Fischer, 807 F. App’x 70 (2d Cir.

2020) (“[W]e conclude that the challenged use of mechanical restraints is not an

atypical hardship when compared to the ordinary incidents of prison life.”)).

Because Tolbert was given an opportunity to amend his pleadings, this claim is

dismissed with prejudice.

D. John Doe and Jane Doe Defendants

Pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam), the

Court requests that the New York State Attorney General attempt to ascertain the

full names of the numerous Jane Doe and John Doe Defendants. The Attorney

General is also requested to obtain and provide the addresses where these

Defendants can currently be served. The Attorney General need not undertake to

24

defend or indemnify such individuals at this juncture. This Order merely provides a

means by which Tolbert may name and properly serve the Defendants as instructed

by the Second Circuit in Valentin.

The Attorney General is hereby requested to produce the identities of these

Defendants within 35 days from the date of this Order. The information shall

be forwarded to the Court’s Pro Se Unit, United States District Court, 2120

Kenneth B. Keating Federal Building, 100 State Street, Rochester, New York

14614. Once this information is provided, the Complaint shall be deemed amended

to reflect the full names of the Defendants, summonses shall issue, and service is

directed, as provided below, without further order.

E. Supervisory Defendants

With respect to the supervisory Defendants, as stated above, Tolbert must

allege the personal involvement of each party. See McKenna, 386 F.3d at 437;

Colon, 58 F.3d at 873. Prison officials cannot be deemed personally involved in the

alleged conduct merely because they are DOCCS leaders or links in the prison

facility’s chain of command. The Amended Complaint fails to present allegations of

personal involvement as to Defendants Annucci, Picolo, and Benettizzi. See

Tangreti, 983 F.3d at 618 (holding that plaintiff must plead that each official,

“through the official’s own individual actions, has violated the Constitution... □□□□

They are dismissed from this action.

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F. Tolbert’s Request to Redact his Amended Complaint

Tolbert asks this Court to redact portions of his Amended Complaint. Dkt. 32

at 18-19. The Court grants that request, in part, for the same reasons set forth in

its Decision and Order dated March 4, 2020. See Dkts. 11-12. The Court denies

Tolbert’s request to redact his references to “bribing SHU inmates to hurt plaintiff

by offering money” because Tolbert identifies no appropriate basis for redaction.

Dkt. 32 at 18-19. A redacted version of the Amended Complaint will be re-docketed

after this Decision and Order is filed. The Court will also docket a redacted version

of Tolbert’s letter request for redaction. Dkt. 32, at 18-19. In any future filings,

Tolbert shall comply with the redaction requirements of Federal Rule of

Civil Procedure 5.2(a).

CONCLUSION

For the reasons discussed above, Tolbert’s claims against Defendants John

Doe Psychiatrist, CO Simmons, and CO Crossman are severed and transferred to

the Northern District of New York.

Tolbert’s retaliation, conspiracy, and due process claims are dismissed with

prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A.

The following claims may proceed to service: conditions of confinement

claims against CO John Doe #46 (spraying chemicals), Sgt. John Doe and CO John

Does (forcing Tolbert out of his wheelchair), watch room John Does (freezing

temperature and denial of toilet/urine jug, supplies, and showers), John Does (non-

watch room denial of showers), Dusza, Wilcott, Long, Ellis, James, Robin,

26

Scheusslers, and Norton (denial of mail, property, clothes/covers, hygiene/cleaning

supplies, and showers); failure to protect claims against Noeth, Clary, Clinton,

Wilcott, Long, NP Graf, Attica Imam John Doe, Nurse Jane Doe (Dkt. 30 at 74-76

(watch room)), Attica Acting Assistant Deputy of Administration John Doe, and

Southport CO John Doe (bribing inmates to hurt Tolbert); and deliberate

indifference to serious medical and mental health needs claims against NP

Graf, Oaks, Dr. Siddiqi, Dr. Gonzalez, Attica Mental Health Deputy Director Jane

Doe, Ms. Hayes, Mr. Kress, Mr. Micheler, and Five Points Food Administrator

John/Jane Doe. All other named Defendants are terminated from this action.

ORDER

IT HEREBY IS ORDERED that Tolbert’s claims against Defendants John

Doe Psychiatrist, CO Simmons, and CO Crossman are severed and transferred to

the Northern District of New York; and it is further

ORDERED that Tolbert’s retaliation, conspiracy, and due process claims are

dismissed with prejudice; and it is further

ORDERED that the Clerk of Court is directed to cause the United States

Marshal to serve copies of the Summons, Amended Complaint, and this Order upon

the following Defendants: CO John Doe #46 (spraying chemicals), Sgt. John Doe

and CO John Does (forcing Tolbert out of his wheelchair), watch room John Does

(freezing temperature and denial of toilet/urine jug, supplies, and showers), John

Does (non-watch room denial of showers), Attica Imam John Doe, Nurse Jane Doe

(Dkt. 30, at 74-76), Attica Acting Assistant Deputy of Administration John Doe, and

27

Southport CO John Doe (bribing inmates to hurt Tolbert), Attica Mental Health

Deputy Director Jane Doe, and Five Points Food Administrator John/Jane Doe, once

identified; Dusza, Wilcott, Long, Ellis, James, Robin, Scheusslers, Norton, Noeth,

Clary, Clinton, Graf, Oaks, Siddiqi, Gonzalez, Kress, Hayes, and Micheler, without

Tolbert’s payment therefor, unpaid fees to be recoverable if this action terminates

by monetary award in Tolbert’s favor; and it is further

ORDERED that all other named Defendants are terminated from this action;

and it is further

ORDERED that the Clerk of Court is directed to forward a copy of the

Summons, Amended Complaint and this Order by email to Michael Russo,

Assistant Attorney General in Charge, Buffalo Regional Office

<Michael.Russo@ag.ny.gov>; and it is further

ORDERED that the New York State Attorney General provided the full

names and addresses of the numerous Jane Doe and John Doe Defendants, to the

extent possible, within 35 days; and it is further

ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), Defendants are directed

to answer the Amended Complaint upon service.

SO ORDERED.

Dated: April 29, 2021

Buffalo, New York Conds}

JO L. SINATRA, JR

ITED STATES DIS DGE

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