# McFadden v. Koenigsmann

> District Court, W.D. New York · October 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10364277

## Case

- **Court:** District Court, W.D. New York
- **Decided:** October 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

REGINALD GHAFFAAR MCFADDEN,
Plaintiff Case # 18-CV-6684-FPG

v.
DECISION AND ORDER

ANNUCCI, et al.,
Defendants.

INTRODUCTION
Pro se Plaintiff, Reginald Ghaffaar McFadden, is a prisoner currently confined at the
Wende Correctional Facility and previously confined at the Attica Correctional Facility (“Attica”).
Plaintiff’s Second Amended Complaint (the “SAC”) presents numerous claims arising under 42
U.S.C. § 1983. ECF No. 47.
Currently before the Court are (1) Defendants’ Second Motion to Dismiss for Failure to
State a Claim, ECF No. 49, and Defendant Stephen Maher’s motion for joinder to such motion,
ECF No. 61, and (2) Plaintiff’s Motion for Supplemental Pleadings, ECF No. 59. For the reasons
set forth below, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion to
Dismiss and GRANTS IN PART and DENIES IN PART Plaintiff’s Motion for Supplemental
Pleadings.
PROCEDURAL HISTORY1
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 that

1 The Court notes that this case, while not yet in the discovery phase, involves a lengthy procedural history. For
purposes of brevity the Court incorporates by reference the procedural history set forth in the Decision and Order
dated February 9, 2021, ECF No. 42.
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, 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, the Court, inter alia, dismissed all claims and granted
leave to file an amended complaint by July 15, 2020. The Court made clear that an amended
complaint would “completely replace the prior complaint” in the action. Id. at 19.
On June 3, 2020, Plaintiff filed a Motion for Temporary Restraining Order, ECF No. 15,
with an attached amended complaint. In response to a Court order directing the Amended
Complaint be docketed separately from the Temporary Restraining Order and copies of the
Summons, Amended Complaint, and motion papers be served, 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 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.2 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.
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. On October
8, 2020, Plaintiff filed a sur-reply to Defendants’ motion to dismiss, ECF No. 35, without seeking
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

2 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.
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.
On February 9, 2021, the Court issued a Decision and Order granting in part and denying
in part Defendants’ Motion to Dismiss, ECF No. 42. In particular, the Court (1) dismissed with
prejudice Plaintiff’s claim regarding the failure to return Plaintiff to Erie County Medical Center
cardiology in accordance with discharge instructions; (2) dismissed without prejudice Plaintiff’s
claims related to the removal of a left arm brace and/or damages to Plaintiff’s left arm for
handcuffing; (3) denied Defendants’ motion to dismiss in regards to Plaintiff’s claim concerning
the failure to replace pacemaker batteries within five years; (4) denied Defendants’ motion to
dismiss Plaintiff’s excessive force claim concerning the use of restraints; (5) dismissed without
prejudice Plaintiff’s denial of medical care claim concerning a wrist injury; (6) dismissed without

prejudice Plaintiff’s denial of medical care claim regarding a left ankle injury; (7) dismissed
without prejudice Plaintiff’s retaliation claim based on a cell search and disciplinary hearing; (8)
dismissed without prejudice Plaintiff’s denial of access to courts claim; (9) dismissed without
prejudice Plaintiff’s denial of dental care claims; (10) dismissed without prejudice Plaintiff’s
second hand smoke exposure claim; (11) denied Defendants’ motion to dismiss Plaintiff’s first
amendment claim concerning the use of soy products in alternative meals and dismissed without
prejudice Plaintiff’s eighth amendment claim regarding the same; and (12) dismissed without
prejudice Plaintiff’s eighth amendment claim regarding COVID procedures. The Court again
made clear 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.’” ECF No. 42 at
31 (quoting Lightner v. Wenderlich, 271 F. Supp. 3d 444, 457 (W.D.N.Y. 2017)).
In that same Decision and Order, the Court denied as moot Plaintiff’s motion for a
temporary restraining order, ECF Nos. 15, 21, denied Plaintiff’s motion for default judgment, ECF

No. 30, denied Plaintiff’s motion to strike pleadings, ECF No. 33, denied without prejudice
Plaintiff’s motion for summary judgment, ECF No. 37, denied Plaintiff’s motion for consolidation,
ECF No. 38, granted in part and denied in part Plaintiff’s motion to compel, ECF No. 39, and
denied as moot Plaintiff’s motion to effectuate service, ECF No. 40.
Following the Court’s Order, Defendants filed an Answer, ECF No. 46. Soon thereafter,
Plaintiff filed his SAC, ECF No. 47, which Defendants’ now move to dismiss, ECF No. 49, 61.
Plaintiff filed a response on March 19, 2021, ECF No. 52, and Defendants replied on March 29,
2021, ECF No. 53. Plaintiff then filed a Motion for Supplemental Pleadings on April 7, 2021.
ECF No. 59.
In the time since Defendants’ motions to dismiss and Plaintiff’s motion for supplemental

pleadings were filed, Plaintiff has filed numerous letters, requests for the appointment of counsel
and motions for temporary restraining orders. See, e.g., ECF Nos. 60, 64, 67, 69, 71, 72, 76, 80,
82, 85, 87. The Court has addressed each such request in the interim and has directed Plaintiff to
refrain from making additional requests until the Court renders a decision on the instant motion to
dismiss. ECF No. 62.
I. 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
Plaintiff’s SAC and subsequent filings in relation to the motion to dismiss are difficult to
understand given the number of filings that have occurred. Nonetheless, the Court has undertaken
the task of liberally construing Plaintiff’s SAC and, in doing so, has identified eight claims, or
groups of claims. The Court considers each in turn below. The factual allegations are drawn solely
from Plaintiff’s SAC, ECF No. 47, and are accepted as true with all inferences drawn in Plaintiff’s
favor, as required at this stage of the litigation.
1. Defendants’ Failure to Comply with Discharge Instructions Regarding
Plaintiff’s Return to ECMC Cardiology, the Removal of the Left Arm
Brace and Injury to the Left Arm

Plaintiff asserts that on August 7, 2012, he was taken by ambulance to Erie County Medical
Center (“ECMC”) and admitted to the hospital. ECF No. 47 at 7-8.3 Upon discharge, Plaintiff
was to be “prepped” for the implantation of a pacemaker. On August 20, 2012, Plaintiff’s
procedure was complete and he was discharged on August 21, 2012, with instructions to not lift
his arm for six weeks, resume meds, and for a follow up appointment in three months. Id. at 9.
However, according to Plaintiff, Defendants Graf, Bonning, Schuck and Hawley ignored
those instructions. It appears from the face of Plaintiff’s SAC that Defendants ignored the
instruction not to remove his arm brace or lift his arm and during the mandatory handcuffing
process in the SHU, he was electrically shocked due to leads to the pacemaker device being
“compromised”. Id. at 9-10. Moreover, Plaintiff was not taken for a follow up on the pacemaker
until February 2, 2015—well beyond the three-month period. Id. at 10.
As stated in this Court’s prior Decision and Order, 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 SAC related to a failure to return Plaintiff
to ECMC cardiology in accordance with the discharge instructions is DISMISSED WITH
PREJUDICE.
Additionally, Plaintiff’s allegations underpinning his Eighth Amendment deliberate
indifference claim regarding the improper removal of his arm brace and moving of his arm, are

3 Citations to pages in Plaintiff’s SAC refer to the pagination created by the CM/ECF system.
again insufficient to state a claim.4 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 the removal of 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—which Plaintiff alleges caused him to be shocked and lose consciousness—Plaintiff again

4 Defendants additionally argue that Plaintiff’s claims concerning the removal of the arm brace and handcuffing are
time barred by the statute of limitations. ECF No. 49-2 at 11. While this appears to be true based on the dates alleged
in Plaintiff’s SAC, the Court makes no determination as to the timeliness of this claim.
fails to name which Defendant or Defendants engaged in the handcuffing and thus, fails to state a
claim upon which relief can be granted. Because the Court has previously provided Plaintiff an
opportunity to amend to remedy each of these deficiencies and Plaintiff has not done so, the claim
is DISMISSED WITH PREJUDICE. Liner v. Goord, 115 F. Supp. 2d 432, 434 (S.D.N.Y. 2000)

(“When a plaintiff does not correct the defects in an initial pleading through the filing of a more
detailed amended complaint, the amended complaint may be dismissed with prejudice.”)
(collecting cases).
2. Denial of Medical Care Regarding Wrist Injury
Plaintiff asserts that on April 17, 2018, while being escorted to a medical appointment,
Defendant Sutter applied handcuffs too tightly, causing Plaintiff’s circulation to be cut off and
leaving a “deep cut” and “marks.” ECF No. 47 at 14-15. Subsequently, on April 18, 2018 and
April 20, 2018, when Defendant Hawley was the treating nurse, Plaintiff requested sick calls. Id.
at 16. Records from those dates indicate left wrist discomfort, numb thumb and that the injury
was caused by being handcuffed too tight. Id. Hawley referred Plaintiff to Defendant Schunk and

Defendant Graf. Id. Defendant Bonning followed up that same day. Id.
Plaintiff alleges that on September 17, 2019, Defendant Graf made a referral to Defendant
Wilson and to physical therapist, Defendant Fink. Id. On October 22, 2019, Plaintiff states he had
a conflict with Physical Therapy and requested it be rescheduled. Id. It was never followed up by
providers to determine whether there was additional need for physical therapy. Id. at 17.
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. While Plaintiff alleges that there was no additional follow up after his conflict
in October 2019, he does not assert any subsequent injury or pain. This belies a finding of
deliberate indifference.

Again, because this Court has previously provided Plaintiff an opportunity to amend to
remedy these deficiencies and he fails to do so, the claim is DISMISSED WITH PREJUDICE.
3. Denial of Medical Care Regarding Left Ankle Injury
Next, Plaintiff asserts that Defendants Hawley, Bonning, Graf, Schunk, and Wilson,
decided that a specialist was not warranted for an alleged 2007 injury. ECF No. 47 at 19. He
further provides that he did not receive the physical therapy “ordered” until January 2019 and that
little was done in the meantime. Id. Plaintiff states in a conclusory manner that this denial of
therapy shows “a deliberate indifference to a serious medical need.” Id. at 20.
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 ankle 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 do not demonstrate that Defendants had actual knowledge of a serious medical need but
were deliberately indifferent. This Court previously indicated that without additional allegations
to establish this claim, it was insufficient to survive a Rule 12(b)(6) motion to dismiss. The same
is true here, and the claim is DISMISSED WITH PREJUDICE.
4. Retaliation: Cell Search and Disciplinary Hearing
Plaintiff asserts that on February 18, 2018, Defendant Maher’s two deputies, Defendants
Moore and Spangler, targeted Plaintiff who refused to cooperate without a lawyer in answering
questions concerning an ongoing investigation. ECF No. 47 at 20. Due to Plaintiff’s lack of
response, Defendants conducted a cell search and removed all of Plaintiff’s property, returning
everything “except over 200 legal documents,” and then filed a false misbehavior report against
Plaintiff. Id.

Defendant Noeth assigned Defendant Clinton to handle the disciplinary hearing.
Defendant Clinton refused to allow witnesses and ultimately found Plaintiff guilty and imposed
sanctions on him. Id. at 20-21. The sanctions imposed interfered with Plaintiff’s Hep-C treatment
and access to the Law Library. Id. at 21.
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 prisoners’ claims of retaliation with skepticism and particular care”)
(citation omitted). 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. See Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974). However, simply alleging that
he was denied the right to call witnesses at a disciplinary hearing is 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). Because this is the same grounds upon which the Court
previously dismissed this claim, the claim is DISMISSED WITH PREJUDICE.
5. Denial of Access to the Courts
Plaintiff asserts that Defendant Hembrook has “a long history of obstructing access to
court,” including by (1) refusing to act as a notary; (2) deliberate defacing legal documents; (3)
intentionally causing delays in motions by rejecting notarizations; and (4) making false statements
that Plaintiff posed as a threat to law clerks. ECF No. 47 at 21. Such abuse is, according to
Plaintiff, “encouraged” by Defendants Noeth, Clinton and Bruen. Id. at 22. It appears that these
issues resulted in a delay in a New York State Appellate Division matter as well as in rejections
of documents by courts. Id. at 21-22.
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).
Therefore, as set forth in this Court’s prior Order, 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 352-53. 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 statements that
Plaintiff’s appeal was extended, default was delayed, and Plaintiff had to write an affirmation after
a court’s rejection of a document. ECF No. 47 at 21-22. Even so, these allegations do not
demonstrate that any of Plaintiff’s legal claims were prejudiced. Accordingly, Plaintiff’s denial
of access to the courts claim is DISMISSED WITH PREJUDICE.
6. Denial of Dental Care
Plaintiff asserts that Defendant Tenbrink failed to follow up on Plaintiff’s 2010 Dental
Emergency Sick Call and in 2013, failed to thoroughly examine the condition of Plaintiff’s teeth
which would have prevented decay and tooth loss. ECF No. 47 at 23. Plaintiff also indicates that

Defendant Tenbrink extracted “two savable teeth.” Id. Aside from the likely issue with statute of
limitations,5 the facts do not sufficiently plead a claim for which Plaintiff is entitled to relief.
As discussed, Eighth Amendment claims are analyzed under the “deliberate indifference”
standard. Plaintiff fails to plausibly allege the requirements of this standard. Specifically, there
are no amplifying details regarding his dental care that suggest it is “a condition of urgency, one
that may produce death, degeneration, or extreme pain.” Hathaway, 37 F.3d at 66. While Plaintiff
alleges teeth were extracted that were savable, he does not set forth anything to suggest that the
extraction caused a condition of urgency. Nor does Plaintiff demonstrate that there was a serious
medical condition which Defendant Tenbrink was aware of and disregarded. Rather, Plaintiff
indicates that after a complaint was made to the Superintendent, Defendant Tenbrink determined

Plaintiff had a broken tooth, and subsequently extracted two teeth. ECF No. 47 at 22-23. This
Court previously indicated that without additional allegations, this claim was insufficient to
survive a Rule 12(b)(6) motion to dismiss. The same is true here, and the claim is DISMISSED
WITH PREJUDICE.

5 Plaintiff asserts that the grievance procedure for the dental issues was not complete until January 29, 2018, ECF No.
47 at 23, referencing Grievance No. A-67711-16. However, according to Defendants’ records, that grievance was
initiated on November 17, 2016. It is unlikely that such a grievance concerned the allegations here which occurred
between 2010 and 2013. No matter, the Court is not dismissing this claim on statute of limitation grounds as the dates
are unclear, but rather, for failure to sufficiently state a claim.
7. Second-Hand Smoking Exposure
Plaintiff alleges that New York State’s Open-Air-policy is not being adequately enforced
by Defendants Annucci, Noeth, or Morley. ECF No. 47 at 25. Specifically, Plaintiff states that
although the policy prevents smoking inside the buildings and cells, it is rarely enforced among

inmates and staff, thereby exposing Plaintiff to second-hand smoke. Id. As a result of this second-
hand smoke, Plaintiff asserts that he is suffering from Chronic Obstructive Pulmonary Disease
(“COPD”) and Coronary Heart Disease (“CHD”). 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 *23 (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).
As in its review of Plaintiff’s initial Complaint and Plaintiff’s Amended 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 was in Plaintiff’s initial Complaint and Amended Complaint. Plaintiff alleges only

that “Defendants Annucci, Noeth, Morley, fail[] to enforce NYS Open-Air-policy for profit,
exposing [Plaintiff] to the second hand smoking of both inmates and staff. ECF No. 47 at 24-25.
Under the subjective component, “the charged official must act with a sufficiently culpable state
of mind.” Hathaway, 37 F.3d at 66. 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
v. Brennan, 511 U.S. 825, 837 (1994)).
Plaintiff’s allegations that Defendants Annucci, Noeth, and Morely did not enforce the non-
smoking policy within DOCCS facilities and that they knew of the failure to enforce the policy, is

wholly conclusory and unsupported by any facts that the Defendants knew of and disregarded an
excessive risk of second-hand exposure to Plaintiff.
Plaintiff’s SAC cites a grievance in which he “challeng[ed] exposure to Second Hand
Smoking” which contributed to his development of COPD and CHD, however, Plaintiff fails to
establish the personal involvement of Defendants. In other words, the SAC fails to establish that
the named Defendants 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 Defendants
Annucci, Noeth and Morely related to second-hand smoke exposure. Because Plaintiff has had
various opportunities to remedy the inadequacies of this claim and he continues to fail to do so,
the claim is DISMISSED WITH PREJUDICE.

8. COVID-19 Claim
Lastly, Plaintiff alleges that Defendants Annuci, Morley, and Williams are inadequately
preventing the spread of COVID-19. See ECF No. 47 at 26-27.
As discussed, 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).
Plaintiff’s allegations fail to allege the subjective component of an Eighth Amendment claim and
contain no amplifying details regarding the named-Defendants’ awareness that COVID-19
measures are not being followed. Rather, Plaintiff makes general allegations that the six feet apart

rule are “almost never enforced,” some officers take off face masks, and that staff members
infected many inmates who were allowed to return to blocks and infect others. ECF No. 47 at 26.
Allegations of awareness are necessary to sufficiently plead that the Defendants “acted recklessly
despite knowing the substantial risk that COVID-19 posed to [McFadden] and other inmates.” Cf.
Petitpas, 2020 WL 6826732, 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, because Plaintiff
has had multiple opportunities to sufficiently allege this claim, it is DISMISSED WITH
PREJUDICE.
9. Abandoned Claims
Defendants assert that by not including the following claims, Plaintiff abandoned them: (1)
the First Amendment claim related to the use of soy products as alternative meals; (2) the deliberate
indifference claim for failure to replace his pacemaker battery within five years; (3) denial of

medical care for left ankle injury; (4) deliberate indifference for not being kept overnight at Buffalo
General Medical Center on October 10, 2019; and (5) no cause of action against Christopher Duffy
(sued as Christopher Dutty).6 After Defendants filed their motion to dismiss arguing dismissal of
the above claims based on abandonment, Plaintiff filed a letter with the Court indicating that it
was a mistake to omit the claims and arguing that the naming of the Defendants involved in the
alleged conduct and other references to the claims effectively preserved them.
“It is well established that an amended complaint ordinarily supersedes the original, and
renders it of no legal effect.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)
(quoting Int’l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977)). It is also generally the
circumstance that “[a]ll causes of action alleged in an original complaint which are not alleged in

an amended complaint are waived.” Austin v. Ford Models, Inc., 149 F.3d 148, 155 (2d Cir. 1998)
(quotations and citations omitted), abrogated on other grounds by Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002).
In Austin, the court considered whether “by requesting leave to file an amended complaint
that omits earlier alleged claims and/or defendants, a pro se plaintiff is deemed to have abandoned
the omitted claims as well as all claims against the omitted defendants.” 149 F.3d at 155. The
court held that “ordinarily it makes perfect sense to hold that a party who seeks to file an amended
pleading that omits a claim intends to abandon the claim, irrespective of whether the amended

6 Plaintiff agrees that Defendant Dutty/Duffy should be dismissed in this action. ECF No. 58 at 3-4. Therefore,
Defendant Dutty/Duffy and any and all claims asserted against him are DISMISSED.
pleading is permitted by the court,” id., but declined to extend the rule to pro se parties. Further,
the court stated that “the question of abandonment is one of intent,” and that a pro se plaintiff
“would normally be allowed to reallege claims omitted from the second pleading once [he] had
been informed that the effect of that [amended complaint] was to abandon those claims.” Id. at

155-56.
Here, it is clear by Plaintiff’s letter, ECF No. 58, that his intention in omitting the deliberate
indifference claim relating to the replacement of the pacemaker batteries within five years,7 the
excessive force claim based on the use of restraints, and the first amendment claim based on the
prison’s failure to provide food that complies with Plaintiff’s religious beliefs, from the SAC was
not to abandon the claims, but rather, was due to a mistake in believing the claims need not be
replead. Given Plaintiff’s pro se status and the letter indicating his intention, the Court will not
deem such claims abandon, but rather, construes the SAC to include those claims as set forth in
the Amended Complaint.
However, Plaintiff does not attempt to replead his Eight Amendment claim concerning

Plaintiff’s overconsumption of soy products which damaged his health and increased his risk for
hear attack, nor does Plaintiff raise such a claim in his letter. Such a claim was previously
dismissed without prejudice as Plaintiff failed to demonstrate that Defendant Olney acted or
omitted to act with a sufficiently culpable state of mind. ECF No 42 at 26. Because Plaintiff failed
to remedy such concerns, and indeed, failed to raise such a claim, the claim is deemed
ABANDONED and therefore is DISMISSED WITH PREJUDICE.

7 The Court previously discussed the pacemaker claim and the forced discharge claim together. See ECF No. 42 at
11-14. As such, because Plaintiff is proceeding pro se and the Court evaluated these issues together, the Court will
not deem the forced discharge claim as abandoned despite Plaintiff’s failure to mention it in either his SAC or his
letter.
II. Plaintiff’s Motion for Supplemental Pleadings
On April 7, 2021, Plaintiff filed a motion for supplemental pleadings raising additional
claims which Plaintiff alleges “relate back” to the three surviving claims.8 Specifically, (1) the
deliberate indifference claim due to the alleged failure to replace pacemaker batteries within five

years and forcing Plaintiff’s discharge from the hospital after the pacemaker procedure, ECF No.
59 at 1-2, (2) the excessive force claim based on restraints which cut Plaintiff’s wrist and ankle,
id. at 3, and (3) the first amendment violation based on the failure of the prison to provide proper
foods in compliance with his religious beliefs, id. at 4-5. It is unclear to this Court whether Plaintiff
seeks to add such claims to his SAC, after recognizing he failed to include the claims in his SAC,
or whether Plaintiff seeks to add such allegations to those claims already set forth in his Amended
Complaint.
Because the Court has determined that Plaintiff did not intend to abandon the three claims
set forth here in the filing of his SAC and has construed the SAC to include such claims from the
Amended Complaint, the Court construes Plaintiff’s motion to supplement as seeking to add

additional factual allegations to the previously asserted claims. Due to the confusing nature of the
pleading the Court addresses each factual allegation in turn.
Plaintiff’s allegations set forth under the “FAILURE To Replace Pacemaker Batteries”
heading are unclear. The first two allegations appear to relate to the excessive force claim
discussed below. Specifically, it states that on October 2, 2019, Defendant Sutter forced Plaintiff
to walk in full restraints from the second floor or the prison hospital, down the steps, and a football
field distance. ECF No. 59 at 2-3. To the extent Plaintiff seeks to ensure such an allegation is

8 The Court did not enter a briefing schedule on Plaintiff’s motion for supplemental pleadings. However, Local Rule
8(b)(2)(B) provides that absent court order, opposing parties shall have fourteen days to file and serve responding
papers. Respondents did not file any memorandum in opposition here.
included in his excessive force claim, the motion is GRANTED. Next, Plaintiff alleges that after
the procedures on October 2, 2019, Plaintiff was brought back to Attica’s prison hospital and
improperly discharged. This appears to already be set forth in Plaintiff’s deliberate indifference
claim. Therefore, to the extent Plaintiff seeks to ensure such an allegation is included in his

deliberate indifference claim, the motion is GRANTED.
Next, Plaintiff states that after experiencing shocks from the newly installed pacemaker,
he was taken back to Buffalo General Medical Care Center and placed in the intensive care unit
until he stabilized. At that time, Plaintiff was released. ECF No. 59 at 3. Then, Plaintiff asserts
he was provided a follow up appointment to monitor the effects of his prescription for Amiodarone
to prevent pain and difficulty breathing, which Plaintiff asserts he complained of to Defendants
Williams and Schunk. Id. at 3-4. This appears to be a new deliberate indifference claim which
Plaintiff asserts relates back to the failure to replace the pacemaker. However, Plaintiff in no way
establishes that the medication was related to the failure to replace the pacemaker. Nor does
Plaintiff demonstrate that the pain and difficulty breathing experienced rose to a level of “a

condition of urgency, one that may produce death, degeneration, or extreme pain.” Hathaway, 37
F.3d at 66. As such, Plaintiff’s motion to supplement to add this claim is DENIED.
Plaintiff’s first two factual allegations under the “Excessive Force” heading relate directly
to the deliberate indifference claim and state that on April 17, 2018 and October 2, 2019, Defendant
Sutter ignored policies regarding the use of restraints during an outside medical trip. ECF No. 59
at 4. Because such facts appear to already be set forth, Plaintiff’s motion to supplement to include
these allegations is GRANTED to the extent non-material factual details have been added or
modified. However, Plaintiff’s third paragraph concerns various Defendants’ failures to treat
Plaintiff’s wrist and ankle injuries. Id. The Court has determined that such claims are
DISMISSED WITH PREJUDICE as Plaintiff has failed numerous times to sufficiently set forth
allegations to establish the claims. The additional statement here that Defendants refused to treat
the injuries does not remedy the SAC’s insufficiencies. Therefore, Plaintiff’s motion to
supplement to include this allegation is DENIED.

Finally, Plaintiff’s allegations in the SAC concerning the First Amendment violations do
not add any materially different claims to those set forth in his Amended Complaint. Compare
ECF No. 59 at 4-5 to ECF No 17 at 23-24. Because they are already discussed, Plaintiff’s motion
to supplement to include these allegations is GRANTED to the extent non-material factual details
have been added or modified.
CONCLUSION
For the reasons discussed, Defendants’ Motions to Dismiss, ECF Nos. 49, 61, are DENIED
IN PART and GRANTED IN PART and Plaintiff’s Motion for Supplemental Pleadings ECF No.
59, is DENIED IN PART and GRANTED IN PART. The allegations related to the claims listed
below—which survived the Defendants’ prior motion to dismiss—are construed to be included in

Plaintiff’s SAC, the operative complaint moving forward.
For clarity, the following claims may now proceed to discovery:
1. Deliberate indifference claims against Defendants Graf, Schunk, Bonning, and
Williams regarding the failure to replace Pacemaker batteries within 5 years;
2. Deliberate indifference claim against Defendant Sutter regarding the refusal to
allow Plaintiff to remain in hospital;
3. Excessive force claims against Defendant Sutter regarding the use of restraints;
4. First Amendment claim against Defendant Olney regarding a diet that complies
with Plaintiff’s religious beliefs.
All other claims are DISMISSED WITH PREJUDICE, as Plaintiff has had three opportunities to
plead the claims and has consistently failed to do so.
IT IS SO ORDERED.
Dated: October 22, 2021
Rochester, New York :
/FRANK P. GERACTI, JR.
United States District Yudge
Western District of New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364277. Public record. Not legal advice.