# Cromwell v. Hendel

> District Court, W.D. New York · October 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10365519

## Case

- **Court:** District Court, W.D. New York
- **Decided:** October 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10365519

## How later opinions describe it (automated extraction)

- concluding that section 24 bars claims asserted under the New York State Constitution in federal court

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

COREY CROMWELL,

Plaintiff,

v. 20-CV-317-LJV
ORDER
JERRY HENDEL, Correction Officer,
Employed at Attica Correctional Facility,
et al.,

Defendants.

The pro se plaintiff, Corey Cromwell, is a prisoner confined at the Clinton
Correctional Facility. He asserts claims under 42 U.S.C. § 1983 and New York State
law, alleging that the defendants—Jerry Hendel, Steven Wagner, and “Superintendent
Noeth”—violated his First, Fourth, Eighth, and Fourteenth Amendment rights when
Cromwell was confined at the Attica Correctional Facility (“Attica”). Docket Items 1, 12,
24.
This Court previously screened Cromwell’s complaint and found that his First,
Fourth, and Eighth Amendment claims against Hendel and Wagner could proceed.
Docket Item 10. But in that screening order, this Court determined that Cromwell had
not stated viable claims against Noeth because Cromwell had not alleged that Noeth
was personally involved in any unconstitutional conduct. Id. And after Cromwell filed
an amended complaint that did not name Noeth as a defendant, this Court screened the
amended complaint, deemed any claims against Noeth to be abandoned, and
dismissed Noeth as a defendant. Docket Item 15.
Cromwell subsequently moved for reconsideration of that order and asked to file
another amended complaint renewing his claims against Noeth. Docket Item 17. This
Court granted that motion and gave Cromwell leave to “file an amended complaint to
reassert any claims against Noeth.” Docket Item 19 at 4. Cromwell then filed a second

amended complaint. Docket Item 24.
This Court now screens Cromwell’s claims against Noeth in his second amended
complaint. For the reasons that follow, Cromwell’s claims against Noeth are dismissed
under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.1
DISCUSSION

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
complaint (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).
Generally, the court will afford a pro se plaintiff an opportunity to amend or to be
heard prior to dismissal “unless the court can rule out any possibility, however unlikely it

1 In his second amended complaint, Cromwell raises the same claims against
Hendel and Wagner that this Court deemed sufficient in its prior screening orders. See
Docket Items 10, 15. For the reasons stated in those orders, Cromwell’s claims against
those defendants remain, and this Court has ordered those defendants to respond. See
Docket Item 15; see also infra at 15.
might be, that an amended complaint would succeed in stating a claim.” Abbas, 480
F.3d at 639 (citation omitted); see also Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000) (“A pro se complaint is to be read liberally. Certainly the court should not dismiss
without granting leave to amend at least once when a liberal reading of the complaint

gives any indication that a valid claim might be stated.” (quoting Gomez v. USAA Fed.
Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999))). But leave to amend pleadings may be
denied when any amendment would be “futile.” Cuoco, 222 F.3d at 112.
I. SCREENING THE COMPLAINT
In evaluating a complaint, the court accepts all factual allegations as true and
draws all inferences in the plaintiff’s favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d

Cir. 2003) (per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). “Specific
facts are not necessary,” and the 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) (per curiam) (alteration in original) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)); see also Boykin v. KeyCorp, 521 F.3d 202, 216
(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, see Wynder v. McMahon, 360 F.3d 73, 76 (2d Cir. 2004).
As noted in this Court’s prior screening orders, Cromwell has sued Hendel and
Wagner, two Attica correction officers, and Noeth, the Attica Superintendent. See
Docket Items 10, 15, 24. A liberal reading of the second amended complaint, Docket
Item 24, tells the following story.2
During an Attica prison visit between Cromwell and his fiancée3 on October 7,
2018, Hendel, the officer “assigned to [Attica’s] visiting room, . . . constantly and clearly

harass[ed] [Cromwell] and his [fiancée].” Id. at 4. In one instance, Hendel insulted
Cromwell’s fiancée for “choos[ing] to be with” Cromwell; Hendel remarked that this
decision “sure sa[id] a lot about [her].” Id. In another instance, Hendel suggested that
Cromwell’s fiancée “dropped out of high school and [did not] know how to read.” Id.
Because of the “constant harassment” by Hendel, Cromwell filed an
administrative grievance against Hendel; likewise, Cromwell’s fiancée “filed a civilian
complaint with her personal lawyer, as well as [] an online complaint” with the “Albany
Office for Civilian Complaint[s].” Id. Cromwell’s fiancée also “wrote/filed a complaint to
Superintendent Noeth.” Id. Despite those multiple grievances, “[n]othing was ever
done about these complaints.” Id.

About a month later, Cromwell’s fiancée again visited Attica. Id. at 5. Hendel,
again “assigned to the facility’s visiting room,” accused Cromwell and his fiancée of
“smuggl[ing] some unknown contraband into [Attica].” Id. Cromwell says that this
accusation was made “in retaliation [for Cromwell’s] and his [fiancée’s] fil[ing] the
grievances and complaints against [Hendel].” Id.

2 Because this screening order deals only with Cromwell’s claims against Noeth,
the Court sets forth a brief recitation of only the facts most relevant to those claims.
3 At some point, Cromwell and his fiancée ended their relationship. See Docket
Item 24 at 9. Because the events giving rise to Cromwell’s claims occurred when
Cromwell and his fiancée were engaged, this Court refers to Cromwell’s ex-fiancée as
his fiancée in this order.
As a result of this accusation, Cromwell was taken into Attica’s “Inmate Visitors
Search Area, where he was thoroughly strip[] searched for the alleged ‘contraband.’” Id.
“No contraband was found,” but Cromwell nevertheless was “escorted to [Attica’s]
Special Watch Room.” Id. Once Cromwell was in the Special Watch Room, he was

ordered to “remove all of his clothing and to put on a thin hospital smock to wear.” Id.
Cromwell was forced to remain in the “unbearabl[y] frig[id]” Special Watch Room
“for a number of days.” Id. All the while, he wore only the thin hospital smock and slept
on “an unsanitary bare mattress.” Id. Cromwell, who has various medical ailments and
“can’t stand [the] cold due to joint pains,” was in “physical, mental[,] and emotional pain
and anguish” in the Special Watch Room. Id.
While he was in the Special Watch Room, Cromwell had to provide “five []
samples of fece[s] to” Wagner for contraband testing. Id. at 6. Although Cromwell
should have had to provide only “the normal required amount of three [] samples,”
Wagner “abus[ed] his authority and . . . humiliate[d] and degrade[d] [Cromwell]” by

“claim[ing] that the [third] sample of fece[s] ‘wasn’t enough’ defecation.” Id. After no
contraband was recovered, Cromwell was released back to his cell on November 7,
2018. Id. at 6-7.
The next day, two officers “appeared in front of [Cromwell’s] cell and ordered him
to put some shoes on and get dressed.” Id. at 7. Cromwell then was taken to the
Special Housing Unit (“SHU”). Id. at 7-8. According to Cromwell, he was placed in the
SHU because of a false misbehavior report. Id. at 7, 21. Cromwell remained in the
SHU for nineteen days before he was “unexpectedly released . . . without having
appeared before a hearing officer” to contest the misbehavior report. Id. at 7-8.
II. SECTION 1983 CLAIMS
“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 against a government official under section 1983, “a plaintiff
must plead and prove ‘that each Government-official defendant, through the official’s
own individual actions, has violated the Constitution.’” Tangreti v. Bachmann, 983 F.3d
609, 618 (2d Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). It is not
enough to assert that the defendant is a “link[] in the prison[’s] chain of command.” See

McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004). Moreover, the theory of
respondeat superior is not available in a section 1983 action. See Hernandez v. Keane,
341 F.3d 137, 144 (2d Cir. 2003). Instead, “[t]he violation must be established against
the supervisory official directly.” Tangreti, 983 F.3d at 618.
A. Official-Capacity Claims
In its second screening order, this Court dismissed Cromwell’s official-capacity

claims without leave to amend. Docket Item 15 at 6-7. That is because the Eleventh
Amendment bars suits for money damages against New York State and its officials in
their official capacity. See id. at 6.
In his second amended complaint, Cromwell again brings claims against each
defendant “in their individual and official capacit[ies] if determined by this Court [sic].”
Docket Item 24 at 2. But for the reasons stated in this Court’s prior order, see Docket
Item 15 at 6-7, the Eleventh Amendment bars Cromwell’s official-capacity claims for

money damages. Those claims therefore are dismissed.
B. Procedural Due Process Claim
This Court previously dismissed Cromwell’s procedural due process claim
because Cromwell had not sufficiently alleged that he was deprived of a liberty interest
entitled to protection. Docket Item 15 at 10-12. In his second amended complaint,
Cromwell again asserts that Noeth committed “egregious due process violations.”

Docket Item 24 at 9.
To raise a viable procedural due process claim, a plaintiff first must show a liberty
interest entitled to protection. See Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994).
And to show “the existence of a protected liberty interest,” a prisoner must establish
(1) “that the confinement or restraint complained of creates an ‘atypical and significant
hardship in relation to the ordinary incidents of prison life’”; and (2) “that ‘the state has
granted its inmates, by regulation or by statute, a protected liberty interest in remaining
free from that confinement or restraint.’” Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.
2000) (alterations omitted) (first quoting Sandin v. Conner, 515 U.S. 472, 484 (1995);

then quoting Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996)). In determining
whether the challenged confinement or restraint is an atypical and significant hardship,
courts consider both the duration and conditions of confinement, “since especially harsh
conditions endured for a brief interval and somewhat harsh conditions endured for a
prolonged interval might both be atypical.” Palmer v. Richards, 364 F.3d 60, 64 (2d Cir.
2004) (quoting Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir. 1999)). So a prisoner who
challenges a relatively short SHU confinement, without any “indication that [he or she]
endured unusual SHU conditions,” cannot state a viable due process claim. See id. at

65-66 (noting that the Second Circuit has “affirmed dismissal of due process claims”
where the “period of time spent in [the] SHU was exceedingly short—less than the 30
days that the Sandin plaintiff spent in [the] SHU—and there was no indication that the
plaintiff endured unusual SHU conditions”).
In his second amended complaint, Cromwell again says that Noeth violated
Cromwell’s due process rights because Noeth “was [] responsible for [Cromwell’s]
wrongful confinement in [the SHU].”4 Docket Item 24 at 9. But for the reasons stated in
this Court’s prior screening order, Cromwell’s nineteen-day confinement in the SHU,
standing alone, is not an atypical and significant hardship. See Docket Item 15 at 10-
12. And Cromwell has not included any allegations in his second amended complaint

suggesting how his SHU confinement was “especially harsh.” See Docket Item 10 at
14; Docket Item 15 at 10. Because Cromwell has been given multiple opportunities to
state a viable due process claim but still has not done so, his claim against Noeth is
dismissed without further leave to amend.

C. Eighth Amendment Claim
Cromwell also says that his nineteen-day confinement in the SHU violated his
Eighth Amendment rights. Docket Item 24 at 9. “In order to establish an Eighth

4 Cromwell’s procedural due process claim against Noeth relates only to
Cromwell’s SHU confinement. See Docket Item 24 at 10.
Amendment violation, an inmate must show ‘(1) a deprivation that is objectively,
sufficiently serious that he was denied the minimal civilized measure of life’s
necessities, and (2) a sufficiently culpable state of mind on the part of the defendant
official.’” Gonzalez v. Hasty, 802 F.3d 212, 224 (2d Cir. 2015) (quoting Gaston v.

Coughlin, 249 F.3d 156, 164 (2d Cir. 2001)). “Confinement in a prison or in an isolation
cell is a form of punishment subject to scrutiny under Eighth Amendment standards.”
Id. (quoting Hutto v. Finney, 437 U.S. 678, 685 (1978)). And “[w]hether incarceration in
the SHU violates the Eighth Amendment[] . . . depends on the duration and conditions
of the confinement.” Id.
Cromwell has not stated a viable Eighth Amendment claim based on his SHU
confinement. As noted above, Cromwell says only that he was confined in the SHU for
nineteen days; he does not allege that he endured any unusual conditions of
confinement while in the SHU. And other courts have dismissed Eighth Amendment
claims based on far longer periods of SHU confinement. See Jay v. Venetozzi, 2020

WL 4382001, at *9 (W.D.N.Y. July 30, 2020) (collecting cases dismissing Eighth
Amendment claims challenging SHU sentences of seven months, twelve months, and
four years). Because further leave to amend this claim would be “futile,” see Cuoco,
222 F.3d at 112, Cromwell’s Eighth Amendment claim against Noeth based on
Cromwell’s SHU confinement is dismissed without leave to amend.

D. Equal Protection Claim
This Court previously dismissed Cromwell’s equal protection claim because he
had not included “specific factual allegations that [any defendant] discriminated against
him on the basis of race.” Docket Item 15 at 10. In his second amended complaint,
Cromwell again says that the defendants “deprive[d] him of his basi[c] and fundamental
constitutional right[] to . . . equal protection of the law.” Docket Item 24 at 3, 10. But
Cromwell again has not included any allegations that could give rise to an equal
protection claim. For the reasons stated in this Court’s prior order, see Docket Item 15,

Cromwell’s equal protection claim is dismissed.
E. Claims Related to Cromwell’s Grievances
Cromwell also suggests that Noeth may be liable to him because Noeth failed to
adequately respond to his complaints. See, e.g., Docket Item 24 at 8 (alleging that
Noeth “is responsible for investigating, answering[,] and resolving inmate complaints”).
But “[i]t is well[ ]established that an allegation that an official ignored a prisoner’s letter

of protest and request for an investigation of allegations made therein is insufficient to
hold that official liable for the alleged violations.” Franks v. Eckert, 2020 WL 4194137,
at *7 (W.D.N.Y. July 21, 2020) (quoting Brown v. Montone, 2018 WL 2976023, at *4
(S.D.N.Y. June 13, 2018)). In other words, “the fact that an official ignored a letter
alleging unconstitutional conduct is not enough to establish personal involvement” in
that constitutional violation. Id. (quoting Withrow v. Goord, 374 F. Supp. 2d 326, 329
(W.D.N.Y. 2005)). To the extent that Cromwell alleges that Noeth violated Cromwell’s
constitutional rights by failing to adequately respond to his complaints, those claims are
dismissed without leave to amend.5 See Cuoco, 222 F.3d at 112.

5 For similar reasons, Cromwell has not alleged a viable claim related to Noeth’s
“failure to act, address, warn[,] or discipline” Hendel for Hendel’s retaliatory actions.
Docket Item 24 at 8-9. Under Tangreti, a supervisory official can be held liable only if
that defendant, “through [his or her] own individual actions, has violated the
Constitution.” Tangreti, 983 F.3d at 618 (quoting Iqbal, 556 U.S. at 676). So
Cromwell’s allegation that Noeth failed to adequately respond to another officer’s
alleged retaliation fails to allege a viable retaliation claim against Noeth. See Fabrizio v.
F. Retaliation Claim
Cromwell also suggests that Noeth retaliated against Cromwell by “terminating
[his] visit[ing] privileges with his fiancée.” Docket Item 24 at 8. To establish a claim for
retaliation under section 1983, a plaintiff must show that (1) he engaged in
constitutionally protected speech or conduct, (2) the defendant took adverse action

against him, and (3) there was a causal connection between the protected speech or
conduct and the adverse action. Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009);
see also Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) (“[A] claim for relief may be
stated under section 1983 if otherwise routine administrative decisions are made in
retaliation for the exercise of constitutionally protected rights.” (citing Purcell v.
Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (per curiam))).
To prove the final prong, the plaintiff “bears the burden of showing . . . that the
protected conduct was a substantial or motivating factor in the prison officials’ decision
to [take the action they did against the] plaintiff.” Graham v. Henderson, 89 F.3d 75, 79

(2d Cir. 1996) (citing Mount Healthy Sch. Dist. v. Doyle, 429 U.S. 274, 287 (1977)). The
plaintiff may rely on circumstantial evidence to prove causation. See Colon v. Coughlin,
58 F.3d 865, 872-73 (2d Cir. 1995). “Types of circumstantial evidence that can show a
causal connection between the protected conduct and the alleged retaliation include
temporal proximity, prior good discipline, [a] finding of not guilty at the disciplinary

Smith, 2021 WL 2211206, at *10 (N.D.N.Y. Mar. 10, 2021) (dismissing retaliation claim
where the plaintiff alleged that the defendants “failed to remedy ongoing First
Amendment violations after becoming aware of the retaliation through grievances and
appeals”), report and recommendation adopted, 2021 WL 2211023 (N.D.N.Y. June 1,
2021).
hearing, and statements by defendants as to their motives.” Barclay v. New York, 477
F. Supp. 2d 546, 558 (N.D.N.Y. 2007).
“[B]ecause of the ‘ease with which claims of retaliation may be fabricated,
[courts] examine prisoners’ claims of retaliation with skepticism and particular care.’”

Johnson v. Eggersdorf, 8 F. App’x 140, 144 (2d Cir. 2001) (summary order) (quoting
Colon, 58 F.3d at 872). And “[b]ecause of the potential for abuse, ‘[courts] insist[] on a
higher level of detail in the pleadings.’” Id. (alterations omitted) (quoting Gill, 824 F.2d
at 194). In the Second Circuit,
prisoner retaliation claims [fall] into three categories: (1) “a retaliation claim
supported by specific and detailed factual allegations which amount to a
persuasive case [and] ought usually to be pursued with full discovery;” (2)
“a complaint which alleges facts giving rise to a colorable suspicion of
retaliation[, and] will support at least documentary discovery;” [or] (3) “a
complaint which alleges retaliation in wholly conclusory terms [and] may
safely be dismissed on the pleadings alone.

Id. (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).

Liberally construed, Cromwell’s second amended complaint alleges that Noeth
retaliated against Cromwell by suspending Cromwell’s visiting privileges with his fiancée
because of his complaints and grievances about other Attica correction officers. See
Docket Item 24 at 8-9. But Cromwell has not alleged any facts that would show a
plausible causal connection between Cromwell’s grievances about other officers and
Noeth’s decision.6 See Quick v. Minale, 2016 WL 6124495, at *7 (N.D.N.Y. Oct. 20,

6 The only apparent basis to infer a causal connection between Cromwell’s
grievances and any decision by Noeth is the temporal proximity between the two. The
Second Circuit has “not drawn a bright line to define the outer limits beyond which a
temporal relationship is too attenuated to establish a causal relationship between the
exercise of a federal constitutional right and an allegedly retaliatory action.” Espinal,
558 F.3d at 129 (quoting Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554
(2d Cir. 2001)). Instead, courts are “to exercise [their] judgment about the permissible
2016) (dismissing retaliation claim after finding that the “alleged retaliation motivated by
an action the prisoner took which did not personally involve the prison officials is
insufficient”). In fact, the filings that Cromwell included with his second amended
complaint suggest that Noeth did not retaliate against him; on the contrary, Noeth

apparently investigated Cromwell’s complaints and then reinstated his visiting
privileges. See Docket Item 24 at 33 (letter from Cromwell to Noeth “thank[ing] [Noeth]”
for “reinstating [Cromwell’s] visiting privileges with [his] fiancée,” as well as
“investigating that incident [and] being fair about the situation”). So Cromwell has not
plausibly alleged a “retaliation claim supported by specific and detailed factual
allegations” or pleaded facts “giving rise to a colorable suspicion of retaliation.”
Johnson, 8 F. App’x at 144 (quoting Flaherty, 713 F.2d at 13)).
In light of all that, Cromwell has not sufficiently alleged that Noeth retaliated
against him.7 Because any further amendment of that claim would be “futile,” see
Cuoco, 222 F.3d at 112, leave to amend is denied.

inferences that can be drawn from temporal proximity in the context of particular cases.”
Id. Given the materials included with Cromwell’s second amended complaint, Cromwell
has not plausibly alleged a causal connection between his grievances and Noeth’s
actions.
7 To the extent that Cromwell alleges that the temporary suspension of his
visiting privileges itself violated his constitutional rights, any such claim is dismissed.
“The denial of prison access to a particular visitor ‘is well within the terms of
confinement ordinarily contemplated by a prison sentence.’” Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 461 (1989) (quoting Hewitt v. Helms, 459 U.S. 460, 468
(1983)). And Cromwell’s visiting privileges with his fiancée were suspended for only a
short period. See Docket Item 24 at 45 (noting that Cromwell’s “visits were taken for 2
weeks”). That falls well short of an “atypical and significant” hardship that would be
protected under the Due Process Clause. See Mills v. Fischer, 497 F. App’x 114, 117
(2d Cir. 2012) (summary order) (“Denying an inmate a single visit with his son does not
constitute an atypical and significant hardship.”); see also Hernandez v. McGinnis, 272
F. Supp. 2d 223, 228 (W.D.N.Y. 2003) (concluding that the “roughly three-year
G. State Constitutional Claims
Finally, Cromwell brings a claim against Noeth under the New York State
Constitution. See Docket Item 24 at 10. “The New York State Constitution provides a
private right of action where remedies are otherwise unavailable at common law or
under [section] 1983.” Allen v. Antal, 665 F. App’x 9, 13 (2d Cir. 2016) (summary

order). And “[s]ection 1983 need not provide the exact same standard of relief in order
to provide an adequate remedy.” Wahad v. F.B.I., 994 F. Supp. 237, 240 n.4 (S.D.N.Y.
1998). Because Cromwell has brought claims for alleged violations of the United States
Constitution under section 1983, this Court declines to recognize a cause of action
under the New York State Constitution to reach the same conduct.
In any event, Cromwell cannot bring a state constitutional claim against Noeth in
this Court. “The Second Circuit has long[ ]held that [New York State] Correction Law §
24 precludes a plaintiff from raising state law claims in federal court against state
officers in their personal capacities for alleged actions arising within the scope of their

employment.” Grubbs v. Ngbodi, 2022 WL 4072926, at *10 (S.D.N.Y. Sept. 2, 2022).
And the “New York Court of Appeals has instructed that an employee will be considered
within the scope of his employment so long as he is discharging his duties, no matter
how irregularly[] or with what disregard of instructions.” Heyliger v. Gebler, 496 F.
Supp. 2d 250, 253 (W.D.N.Y. 2007) (citation and internal quotation marks omitted).
Because the conduct that Cromwell says violated state law occurred while Noeth was
discharging his duties as Superintendent, Cromwell’s claim under the New York State

suspension of [the plaintiff’s] visitation rights did not violate [his] constitutional rights”
where the plaintiff could still communicate with others by letter and telephone).
Constitution is barred by section 24. See id. (concluding that section 24 bars claims
asserted under the New York State Constitution in federal court).
For those reasons, Cromwell cannot assert a claim directly under the New York
State Constitution against Noeth. That claim is dismissed without further leave to

amend. See Cuoco, 222 F.3d at 112.
ORDER

In light of the above, IT IS HEREBY
ORDERED that Cromwell’s claims against “Superintendent Noeth” are dismissed
under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, and the Clerk of the Court shall terminate
Noeth as a defendant to this case; and it is further
ORDERED that Hendel and Wagner shall answer the complaint or respond
under 42 U.S.C. § 1997e(g); and it is further
ORDERED that Cromwell shall notify the Court in writing if his address changes.
The Court may dismiss the action if Cromwell fails to do so.

SO ORDERED.

Dated: October 28, 2022
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10365519. Public record. Not legal advice.