Nova v. Rocker

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JULIO NOVA,

Plaintiff,

V. 23-CV-6170-FPG

ORDER

MS. C. ROCKER, Senior Counselor; MR. D.

MARTUSCELLO, Acting Commissioner;

MR. A. ANNUCCTI, Former Acting

Commissioner; MR. D. VENETTOZZI,

Former Director of Special Housing Unit;

MR. A. RODRIGUEZ, Director of Special

Housing Unit; MR. J. RICH, Superintendent,

MR. T. CARROLL, Captain/Acting Deputy

Superintendent for Security; MS. M.

RIVERA, Corrections Sergeant; MR. T.

TOMPKINS, Corrections Sergeant; MR. N.

HUBLER, Corrections School Teacher;

JOHN DOE 1-5, C.O. NAIDA, and C.O.

WALLACE,!

Defendants.

Pro se Plaintiff Julio Nova, currently incarcerated at the Green Haven Correctional

Facility, filed a Complaint asserting claims against Correction Officer C. Rocker (“Rocker”) and

ten John and Jane Doe Elmira Correctional Facility (“Elmira”) officials. ECF No. 1. On May 31,

2023, the Court issued an order granting Plaintiff permission to proceed in forma pauperis and

screening the Complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a). ECF No. 4 (the initial

screening order). The Court dismissed Plaintiff's state law claims and his 42 U.S.C. § 1983 claims

seeking monetary damages against New York Department of Corrections and Community

' The Clerk of Court is directed to amend the caption as set forth above to include Naida and Wallace.

Supervision (““DOCCS”) and its agents in their official capacities. Jd. at 18-19. The Court found

Plaintiff had plausibly alleged certain claims and dismissed the remaining claims with leave to

amend, indicating that those claims would be dismissed with prejudice pursuant to §§

1915(e)(2)(B) and 1915A(b) unless Plaintiff filed an amended complaint. Jd. at 21.

Plaintiff filed an Amended Complaint, ECF No. 13, which the Court accepts as timely

filed. The Amended Complaint again names Rocker and adds the following Defendants: Acting

Commissioner Martuscello (“Martuscello”), former Acting Commissioner Annucci (“Annucci”),

former Director of Special Housing Unit Venettozzi (“Venettozzi”), Director of Special Housing

Unit Rodriguez (“Rodriguez”), Superintendent Rich (“Rich”), Acting Deputy Superintendent for

Security Carroll (“Carroll”), Sergeant Rivera (“Rivera”), Sergeant Tompkins (“Tompkins”),

corrections school teacher Hubler (“Hubler”), John Doe[s] 1-5, Correction Officer Naida

(“Naida’”), and Correction Officer Wallace (“Wallace”).

For the reasons discussed below, Plaintiff's retaliation claim will proceed to service upon

Naida and Rivera; his excessive force claim will proceed to service upon Naida; his failure to

intervene claim will proceed to service upon Rivera; and his due process claim will proceed to

service upon Rocker and Hubler. Certain claims from the original Complaint are deemed

abandoned, and, accordingly, will be dismissed, because Plaintiff failed to include any factual

allegations in support of them in the Amended Complaint. Several claims will be dismissed

without leave to amend because the Court previously apprised Plaintiff of the pleading

requirements to state such claims and Plaintiff failed to plausibly allege facts setting forth those

requirements. Defendants Carroll, Rich, Tompkins, Lang, Annucci, Wallace, Martuscello,

Venettozzi, Rodriguez, and John Does 1-5 will be terminated from the action because either

Plaintiff failed to allege their personal involvement in any constitutional deprivation, or they are

named in an abandoned or insufficiently pled claim.

DISCUSSION

I. SCREENING

Sections 1915 and 1915A “provide 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) is frivolous, malicious, or fails

to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant

who is immune from such relief.” 28 U.S.C. § 1915A(b)(1)-(2).

In evaluating a complaint, the Court accepts all factual allegations as true and draws all

reasonable 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). To be sufficient, a pleading

“does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In that vein, “[a] pleading that

offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will

not do.’” Jd. Rather, “a complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). That

measure of plausibility requires “more than a sheer possibility that a defendant has acted

unlawfully”—the pleaded facts must permit a “reasonable inference” of liability for the alleged

misconduct. Id.

Il. FACTUAL ALLEGATIONS

Plaintiff primarily composed his Amended Complaint with conclusory allegations. In sum,

the facts in the Amended Complaint allege that (1) in July 2020, while incarcerated at Elmira,

Naida retaliated against him for filing a grievance against her and (2) in August 2020, in an

unrelated incident, Plaintiff was accused of fighting with an inmate named Rosa. ECF No. 13 at

11-12. Plaintiff contends Rosa is a known violent offender who suddenly and without provocation

attacked him. Jd. at 13-16. Nonetheless, Plaintiff received a misbehavior report asserting Tier III

violations. Jd. at 1, 16. Rocker convened a disciplinary hearing, found Plaintiff guilty of four of

the six charges in the misbehavior report, and sentenced Plaintiff to 180 days in the Special

Housing Unit (“SHU”). Jd. at 17, 19, 97. Plaintiff successfully challenged the disciplinary

decision in an Article 78 petition, obtaining an annulment of the prison’s disciplinary

determination and expungement of the record of his disciplinary infraction. Jd. at 22. By the time

that decision was issued, Plaintiff had served his full 180-day sentence. Jd.

Ill. 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 an official under § 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). Moreover, the theory of respondeat superior is not available in a § 1983 action.

See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). “[T]Jhere is no special rule for

supervisory liability. Instead, a plaintiff must plead and prove that each Government-official

defendant, through the official’s own individual actions, has violated the Constitution.” Yangreti

v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (internal quotation marks omitted).

A. Claims Deemed Abandoned

“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)). In general, “[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, however, the Second Circuit declined to apply the general rule to pro se litigants, reasoning

that they “may not fully understand the superseding effect of the second pleading, even when it is

allowed much less when it is disallowed.” Id. “Ultimately,” the Circuit noted, “the question of

abandonment is one of intent.” Jd.

In its initial screening order, the Court dismissed several of Plaintiff's claims with leave to

amend. ECF No. 4 at 8-16. For each of these claims, the Court set forth the elements of the claim

and described the deficiencies in Plaintiff's pleading. In granting leave to amend, the Court

cautioned Plaintiff that if he failed to file an amended pleading that conformed to the Court’s

instructions, the claims would be dismissed. Jd. at 21.

Plaintiff's original Complaint asserted an access to courts claim based on alleged

interference with his legal mail. Jd at 6. Any allegations regarding interference with his legal

mail are conspicuously left out of Plaintiff's Amended Complaint. Consequently, Plaintiffs

access to courts claim is deemed abandoned.

Plaintiff also asserted a failure to protect claim based on the contention that a “John Doe”

commented that Plaintiff is a snitch, id. at 10, but the Amended Complaint contains no allegations

regarding any comment that Plaintiff is a snitch. This claim is therefore deemed abandoned.

Plaintiff named in his original Complaint a Sergeant Doe, since identified as Sergeant

George Lang. Jd. at 8-9; ECF No. 5 (Valentin response). The Amended Complaint does not name

Lang and does not contain any allegations attributable to Lang. Accordingly, any claims against

Lang are deemed abandoned.

The Court also permitted Plaintiff to replead his conspiracy claim. ECF No. 4 at 15-16.

As the Amended Complaint contains no specific allegations regarding a conspiracy, this claim is

deemed abandoned.

Because the Court previously cautioned Plaintiff that if he failed to file an amended

pleading that conformed to the Court’s instructions, the claims would be dismissed, and because

his omission of those claims and Lang as a defendant appear to be intentional, his abandoned

claims are dismissed without leave to amend. See Fluitt v. Baxter, No. 22-CV-6507-FPG, 2023

WL 3275976, at *6 (W.D.N.Y. May 5, 2023) (“Although [the] [p]laintiff was granted leave to

amend these [conditions of confinement and equal protection] claims, he did not replead them in

the Amended Complaint. The Court deems these claims abandoned, and, consequently, they are

now dismissed with prejudice.”).

B. Claims Proceeding to Service

1. Retaliation

In its initial screening order, the Court found Plaintiffs retaliation claim against Naida

sufficient to proceed to service. ECF No. 4 at 6. To the extent Plaintiff intended to assert a

retaliation claim against another official, the Court granted Plaintiff leave to replead the claim. Jd.

Plaintiff alleges in his Amended Complaint that the day after he submitted his grievance against

Naida, Rivera authorized Naida to search Plaintiff’s cell, and was present when Naida assaulted

Plaintiff, but stood by, taking no action. ECF No. 13 at 12, § 41-44. Although Plaintiff does not

specifically state that Rivera knew about Plaintiff's protected conduct of filing a grievance, these

allegations are sufficient to warrant further factual development and service upon Rivera.

2. Excessive Force

In its initial screening order, the Court dismissed Plaintiff's excessive force claim with

leave to amend because he did not allege any injury and the allegations did not establish that the

force used was to cause harm, rather than in a good-faith effort to maintain or restore discipline.

ECF No. 4 at 7-8. Plaintiff now alleges that without provocation, and the day after he filed a

grievance against her, Naida “punched and kicked” him several times causing Plaintiff to urinate

blood “for about a week” and suffer a headache “for several days.” ECF No. 13 at 13 J 46-47.

These allegations are sufficient to survive initial screening and service will be made upon Naida.

3. Failure to Intervene

“It is widely recognized 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.” Ekukpe v. Santiago, 823 F. App’x 25, 32 (2d Cir. 2020)

‘(summary order) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). A claim for an

officer’s failure to intervene is alleged by “demonstrating that ‘(1) the officer had a realistic

opportunity to intervene and prevent the harm; (2) the officer knew that the victim’s constitutional

rights were being violated; and (3) the officer did not take reasonable steps to intervene.’”

Flannery v. City of Rochester, No. 22-CV-6101, 2022 WL 16856660, at *8 (W.D.N.Y. Nov. 10,

2022) (brackets omitted) (quoting Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y.

2008)).

“Failure to intervene claims are contingent upon the disposition of the primary claims

underlying the failure to intervene claim.” Usavage v. Port Auth. of N.Y. & N.J., 932 F. Supp. 2d

575, 599 (S.D.N.Y. 2013) (internal quotation marks omitted). Thus, that Plaintiff has plausibly

alleged an excessive force claim is relevant to whether his failure to intervene claim may proceed.

See Coleman v. City of New York, No. 07 CIV. 1051 (CM), 2010 WL 571986, at *8 (S.D.N.Y.

Feb. 2, 2010) (dismissing failure to intervene claims against police officers where no underlying

constitutional violation was alleged), Plaintiff alleges Rivera “was present during the entire time

he was assaulted by defendant Naida,” and had “ample opportunity to intervene,” but “instead

[Rivera] allowed CO Naida to carry-out the assault where she punched and kicked Plaintiff

multiple times.” ECF No. 13 at 12 § 44; 13 9 47. These allegations are, at this early stage,

sufficient to warrant service upon Rivera.

4, Procedural Due Process

In its initial screening order, the Court permitted Plaintiff's procedural due process claim

to proceed to service upon Rocker. ECF No. 4 at 13-14. The allegations in the Amended

Complaint remain sufficient to permit his procedural due process claim to proceed to service upon

Rocker.

Plaintiff newly names Hubler as a Defendant. He contends that Rocker assigned Hubler to

assist Plaintiff with preparing for his disciplinary hearing, but Hubler failed to provide meaningful

assistance. ECF No. 13 at 17, ff 65-67. Specifically, “Plaintiff requested that [Hubler] visit and

interview incarcerated individuals [who were] in [a] position to see or hear anything in regard to

the said incident.” Jd., 65. Plaintiff chiefly complains that Hubler’s failure to complete the tasks

he requested meant Plaintiff was unable to call certain witnesses. Jd. at 48, 64-66, 91-93

(disciplinary hearing transcript). The Albany Supreme Court found “[t]he administrative record

and respondent’s concession establish that the Hearing Officer improperly relied on information

from the employee assistant as to the issue of whether certain witnesses were willing to testify,”

and concluded a new hearing was warranted. ECF No. 1-1 at 61. Given that Plaintiff had served

“all of the sanctions in [the] matter (including 180 days in the Special Housing Unit),” the court

annulled the disciplinary determination and expunged the disciplinary infraction from Plaintiff's

record, Id.

Constitutionally sufficient due process in a prison disciplinary hearing includes, inter alia,

the right to call witnesses and the aid of a staff member or inmate in presenting a defense. Wolff

v. McDonnell, 418 U.S. 539, 564-66 (1974); Eng v. Coughlin, 858 F.2d 889, 897 (2d Cir. 1998)

(assistance in presenting defense). Where an inmate is unable to investigate the charges on their

own behalf, DOCCS regulations entitle the inmate to receive assistance in investigating the charge

and preparing a defense. See Elder v. McCarthy, 967 F.3d 113, 118 (2d Cir. 2020) (citing 7

N.Y.C.R.R. 251-4.1(a)(4)). As Elder explains, the constitutional obligation of assistance “is

violated by a failure to . . . interview an inmate’s requested witnesses without assigning a valid

reason.” Id. at 126 (quoting Fox v. Coughlin, 893 F.2d 475, 478 (2d Cir. 1990)).

The hearing record shows that Hubler and Plaintiff had very different perspectives

regarding the assistance Plaintiff alleges he requested and the assistance Hubler testified that he

provided. ECF No. 13 at 48, 64-66, 91-93. For this reason, and because the Article 78 outcome

lends support to Plaintiff's allegation that Hubler’s failure to provide adequate assistance impacted

his ability to present his defense—whether due to Hubler’s failure or Rocker’s, the Court finds this

claim warrants further factual development and will be served upon Hubler.”

C. Claims Subject to Dismissal

1. Failure to Protect

Plaintiff's Amended Complaint alleges that Carroll, Rich, and Tompkins failed to protect

Plaintiff “from a particularly dangerous incarcerated individual” and failed “to take action to

prevent the well documented longstanding problem in Elmira C.F.” Jd. at 16958. Plaintiff alleges

that Carroll, Rich, and Tompkins have been aware that Elmira “exposes incarcerated individuals

to conditions that present a substantial risk of harm, and as a result Plaintiff was seriously injured.”

Id. 60, 164. He also alleges that Defendant Doe is responsible for making Rosa a porter. Id. at

515. These conclusory allegations do not sufficiently demonstrate that Plaintiff was incarcerated

under conditions posing a substantial risk of serious harm or that Carroll, Rich, Tompkins, and

Doe acted with deliberate indifference to his safety. See ECF No. 4 at 8-9 (setting forth the

elements required to plead a failure to protect claim arising from an unprovoked assault).

Plaintiff also alleges that Wallace failed to secure Rosa in his cell “in accordance [with]

applicable required prison’s supervision rules and [regulations],” thus failing to prevent the assault

despite having “ample opportunity” to do so. ECF No. 13 at 15, 4 55-56. Plaintiff further asserts

2 The Court expresses no opinion as to whether this claim can withstand a properly filed motion to dismiss or for

summary judgment.

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“upon information and belief,” that Rosa had “previously been cited by [DOCCS] for violent

behavior against other incarcerated individuals on at least [one] or two occasion[s].” Jd. □ 57.

Neither Plaintiffs bald assertion that Wallace should have secured Rosa in his cell in accordance

with applicable rules and regulations nor his allegation that Rosa was possibly previously cited for

violent behavior plausibly alleges a condition posing a substantial risk of harm to Plaintiff or

Wallace’s deliberate indifference.

In its initial screening order, the Court set forth the elements of a failure to protect claim,

noted that “[iJn the context of an unprovoked assault, a substantial risk of serious harm can be

alleged by showing that all prisoners in plaintiff's circumstance faced a risk of attack and the

defendants knew or should have known about it,” and provided examples of allegations that other

courts had found sufficient to state such a claim. ECF No. 4 at 8-9. Plaintiff's unremarkable

observation that Elmira, as a maximum-security prison, houses many offenders prone to violence,

see ECF No. 13 at 16, 37, and his assertion that Rosa may have been previously cited for violent

acts, do not sufficiently plead that he was at a substantial risk of serious harm in the circumstance

he faced—returning from “chow” and, happenstance, encountering inmate Rosa. Jd. at 14-15.

Thus, he fails to allege a substantial risk of serious harm and to make the necessary connection

between the Defendants’ knowledge of that risk of harm and the attack Plaintiff alleges he suffered.

See ECF No. 4 at 9. Accordingly, this claim is dismissed without further leave to amend. See

Nat’! Credit Union Admin. Bd. v. U.S. Bank Nat’l Ass’n, 898 F.3d 243, 257 (2d Cir. 2018) (“When

a plaintiff was aware ‘of the deficiencies in his complaint when he first amended,’ he ‘clearly has

no right to a second amendment. . . .”” (quoting Denny v. Barber, 576 F.2d 465, 471 (2d Cir.

1978)); accord Williams v. Baxter, No. 22-CV-6117-EAW, 2023 WL 5584345, at *3 (W.D.N.Y.

Aug. 29, 2023) (applying Nat’l Credit Union Admin. Bd. and Denny holdings to litigant proceeding

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pro se); Daniels v. Carter, No. 21CIV8985ATSLC, 2022 WL 17979915, at *10 (S.D.N.Y. Nov.

22, 2022), report and recommendation adopted, No. 21CIV8985ATSLC, 2022 WL 17978908

(S.D.N.Y. Dec. 28, 2022) (applying Denny to pro se litigant).

2. Equal Protection

Plaintiff's original Complaint contended that Defendants deprived him equal protection

“when subjecting him to ridicule and disparaging ethnic behavior.” ECF No. 1 at 25. Plaintiff .

alleged he overheard a derogatory exchange between two sergeants when he was a patient at

Elmira’s hospital. Jd. at 24-25; see also ECF No. 4 at 4 (reciting the exchange). In its initial

screening order, the Court dismissed the claim with leave to amend because the allegations

regarding race or ethnicity were conclusory and limited to verbal abuse. ECF No. 4 at 11 (citing

Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986)).

Plaintiff's Amended Complaint changes course, now contending that the events stemming

from the altercation with Rosa would not have occurred but for systemic racism within DOCCS.

See ECF No. 13 at 1, 5-42. Specifically, he asserts that but for his race, he would not have received

a misbehavior report, faced Tier III disciplinary charges, been adjudicated guilty on four of those

six charges, or sentenced to 180 days in SHU. Jd. at 27-28 J 117, 119.

This claim sets forth a new theory of liability, is based on different events, and names

different defendants. It therefore goes beyond the scope of the initial screening order’s leave to

amend. Even overlooking that, this claim is composed of conclusory allegations and the Amended

Complaint does not suggest the existence of facts that would plausibly allege that Plaintiff was

denied equal protection on the basis of his race.

“<(T]o state a race-based claim under the Equal Protection Clause, a plaintiff must allege

that a government actor intentionally discriminated against him on the basis of his race,’ which

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may be asserted in various ways.” Miller v. Terrillion, 391 F. Supp. 3d 217, 224 (E.D.N.Y. 2019)

(quoting Brown v. City of Oneonta, New York, 221 F.3d 329, 337 (2d Cir. 2000), overruled in part

on other grounds by Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)).

A plaintiff may point to an express racial classification, identify a facially neutral

law or policy that has been applied in an intentionally discriminatory manner or

allege that a facially neutral statute or policy has an adverse effect and that it was

motivated by discriminatory animus. Discriminatory intent requires proof that a

discriminatory purpose has been a motivating factor in the challenged action, i.e.,

that those who carried out the challenged action selected or reaffirmed a particular

course of action at least in part because of, not merely in spite of, its adverse effects

upon an identifiable group.

Id. at 224-25 (citation and internal quotation marks omitted) (emphasis added).

Plaintiff points to three sources of data to support his claim. First, a survey conducted in

1989, “assessing formal and informal punitive practices in the U.S. prison [system]” and

concluding that “solitary confinement, loss of privileges, physical beatings and other forms of

deprivation and harassment were common disciplinary practice[s] that were rendered routinely,

capriciously, and brutally in maximum-security U.S. prisons.” ECF No. 13 at 5 (internal quotation

marks omitted). He alleges the study further found that Black and Latino prisoners were targeted

for especially harsh treatment. Id.

Second, a 2016 New York Times article “that delved into 59,354 disciplinary cases from

2015.” Id. at 6. It found, inter alia, that at some New York prisons “the rate at which Black and

Hispanic prisoners were punished was twice that of white prisoners [and that Black and Hispanic

prisoners] also ended up in solitary confinement more often, and were held there for longer periods

of time.” Id.

Third, a 2022 New York Inspector General study, which found “that despite policy changes

within DOCCS intended to address the known problem of disparities in the administration of

misbehavior reports for offenses committed while in ‘custody,’ Black and Hispanic incarcerated

13

people remain more like[ly] than their white counterparts to face [additional] punishment behind

bars.” Jd. at 7. These allegations are indeed troubling, but Plaintiff makes no connection between

the information contained in the survey, news article, and study and what he alleges happened to

him.

Further, the Amended Complaint is rife with inconsistencies in both his factual allegations

and the data he presents. For example, Plaintiff contends that “[b]ase[d] on the [I]nspector

General[‘s] analysis, upon information and belief, defendant Rocker[‘s] hearing disposition dated

Oct. 27, 2020, and her guilty finding{s] against Black and Hispanic [inmates] in the past, must

have been rendered based on Plaintiff's race.” Jd. at 27-28, §§ 117, 119. But the Amended

Complaint includes no indication that Rocker sentences Black and Hispanic prisoners more

harshly than prisoners of other races or that she adjudicates Black and Hispanic prisoners guilty

more often than prisoners of other races. Conversely, Plaintiff contends that Rocker has a one-

hundred percent conviction rate because her motto is “the guards are never wrong.” See id. at 21,

4 92.

And although Plaintiff alleges the IG report shows that Hispanic incarcerated individuals

are “more than 12 percent more likely to be issued a misbehavior [report] than a white incarcerated

individual,” id. at 7, there are no allegations permitting the inference that Plaintiff received a

misbehavior report because he is Hispanic.

In addition, the data Plaintiff presents in support of his claims is not specific to Elmira,

where the alleged constitutional violations occurred. It also does not provide information from

which the Court could infer a pattern of race discrimination within Tier III disciplinary hearing

processes. For example, Plaintiff alleges “[t]he DOCCS disciplinary process almost always

secures a conviction against Black and Hispanic [incarcerated] individuals. From 2007 to 2011,

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DOCCS conducted more than 105,500 Tier III disciplinary hearings with a conviction rate of

approximately 95%.” Jd. at 10, § 30.

This data appears to refer to all Tier III hearings within DOCCS and is not specific to

Elmira, although Plaintiff does allege that racial bias is generally more pronounced the further the

prison is from Manhattan. Jd. at 6-7. More importantly, the data does not make clear whether

ninety-five percent of Black and Hispanic inmates facing Tier III hearings are convicted or ninety-

five percent of all inmates facing Tier III hearings are convicted. In other words, this data does

not show differences in the disciplinary outcomes of Black and Hispanic inmates as compared to

inmates of other races. Thus, it does not help the Court in determining whether Plaintiff can

plausibly allege race discrimination due to bias inherent in Elmira’s disciplinary system or Tier III

disciplinary hearings generally.

Finally, his factual allegations regarding the individual Defendants do not evince any racial

animus toward him. For example, Plaintiff contends his SHU sentence “was rendered against

[him] based on his race,” id. at 31, 131, but there are no facts in the Amended Complaint or

attachment thereto that warrant an inference that Plaintiff's race was a factor in the disciplinary

proceedings against him.

The Court notes again that although Plaintiffs original Complaint alleged that two

sergeants subjected him to “ridicule and disparaging ethnic behavior,” ECF No. 1 at 25, his

Amended Complaint contains no such allegations. Moreover, the alleged behavior in the original

Complaint points to sergeants working in Elmira’s hospital, while the allegations in the Amended

Complaint name those involved in Plaintiff's disciplinary proceeding.

Though vast, Plaintiff's allegations of race discrimination are conclusory. In sum, Plaintiff

asks the Court to infer that racial bias in the disciplinary processes of some prisons, id. at 6, paired

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with a racially disproportionate pattern of misbehavior reports in all DOCCS prisons, id. at 7,

equates to intentional discrimination against him. But his Amended Complaint does not permit

such inference.

Because Plaintiff's allegations are insufficient to establish that race was a motivating factor

in any of the constitutional violations alleged in the Amended Complaint, his equal protection

claim is dismissed. Because this claim is outside the scope of the permitted amendment and the

Amended Complaint does not suggest the existence of facts that would plausibly allege this theory

of liability, the Court denies further leave to amend. See Fisher v. Bureau of Alcohol, Tobacco &

Firearms, No. 22-CV-6440-CJS, 2023 WL 2082552, at *6 (W.D.N.Y. Feb. 17, 2023) (denying

opportunity to replead where the plaintiff “did not comply with Court’s instructions to clarify his

claims, but, rather, submitted an essentially different lawsuit” in part asserted under “an entirely

new theory of recovery”); Palm Beach Strategic Income, LP v. Salzman, 457 F. App’x 40, 43 (2d

Cir. 2012) (summary order) (“District courts in this Circuit have routinely dismissed claims in

amended complaints where the court granted leave to amend for a limited purpose and the plaintiff

filed an amended complaint exceeding the scope of the permission granted.”).

3. Procedural Due Process: False Misbehavior Report

In this newly asserted claim, Plaintiff alleges that Tompkins and Wallace “issu[ed] a false

misbehavior report against [him].” ECF No. 13 at 36, □ 155. There are two paths to alleging a

constitutional claim based on a false misbehavior report. One way is to show that the misbehavior

report “was issued in retaliation for exercising a constitutionally protected right.” Willey v.

Kirkpatrick, 801 F.3d 51, 63 (2d Cir. 2015). The other is to show that the plaintiff “was disciplined

without adequate due process as a result of [an allegedly false] report.” Jd. The facts in the

Amended Complaint show neither.

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Regarding Tompkins, Plaintiff alleges: “Defendants Tompkins and Wallace acted with

deliberate indifference by issuing a false misbehavior report against Plaintiff.” Jd. at 36, J 155.

The Amended Complaint contains no factual allegations suggesting that Tompkins authored a

misbehavior report. The only reference connecting Tompkins to a misbehavior report is the

statement in Wallace’s report that “Inmate Rosa was observed by myself with a laceration to the

back of his neck which Sgt. Tompkins deemed consistent with a cutting type weapon.” Jd. at 15.

Regarding Wallace, Plaintiff contends that Wallace’s written misbehavior report differed

from the testimony he gave at Plaintiffs disciplinary hearing. ECF No. 13 at 14-15. Plaintiff

alleges that Wallace’s written report states that he observed Plaintiff make a “slashing type motion

to the back of Inmate Rosa.” Jd. at 15. Wallace testified:

I was observing the chow return of 4 gallery inmates coming upstairs. Inmate Nova

came up the stairs, turned the corner to go to 4 gallery, and inmate Rosa exited 4

gallery at which time he turned, used his left hand, made a slashing motion to the

side of inmate Nova’s face ... . Inmate Rosa initiated the contact.

Id. at 77.

Plaintiff does not contend that Rocker’s allegedly unconstitutional acts during the

disciplinary hearing arose from Wallace’s misbehavior report or his testimony. Instead, Plaintiff

contends Rocker denied him due process because she was biased, did not direct his assistant to

interview the witnesses he requested, and denied him the opportunity to present relevant testimony

and evidence. Jd. at 17-21.

The allegations regarding Tompkins and Wallace do not establish that a misbehavior report

was issued in retaliation for Plaintiffs exercise of a constitutionally protected right or that Plaintiff

was disciplined without adequate due process as a result of a false report. The Court notes that

Plaintiff's original Complaint asserted that Wallace’s misbehavior report and testimony differed,

but there were no facts suggesting that Plaintiff intended to assert a claim based on a false

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misbehavior report. Because no facts in the Complaint or Amended Complaint plausibly allege a

constitutional violation based on a false misbehavior report, this claim is dismissed without further

leave to amend. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (leave to amend

pleadings may be denied when any amendment would be futile).

4, Procedural Due Process: Disciplinary Appeals

Plaintiff alleges that Annucci, Venettozzi, Rodriguez, and Rich could have prevented,

modified, or corrected Plaintiff's SHU sentence but did not. Jd at 11 | 36; 21-22; 32-33 141.

Plaintiff contends that as part of the disciplinary appeal process, Rich could have reduced or

vacated the “term of SHU confinement” by virtue of his role as Superintendent, but Rich instead

“authorized the continued unlawful confinement,” id. at 21, § 94, and Venettozzi and Rodriguez

“affirmed and confirmed’ Plaintiff's full sentence,” id. at 21-22 4 95. He further contends that

“Defendants Martuscello, [A]nnucci, Rodriguez, Venettozzi, and Rich were personally involved

because they were policy makers with respect to [DOCCS] appeal decisions and they are

responsible for ensuring that [DOCCS] personnel obey the constitution and the laws of the United

States.” Id. at 22,996. And, further, that “Defendants Annucci, Rodriguez, Venettozzi, and Rich

had ample opportunity to prevent Plaintiff's 180 days in SHU sentence, yet failed to do so when

they ignored his appeal failing to protect him and to intervene and preventing Plaintiff from serving

an unconstitutional SHU sentence.” Jd. at 33, 7 141.

Although plausibility might be found upon allegations that an “official proactively

participated in reviewing the administrative appeals as opposed merely to rubber-stamping the

result,” Hamilton v. Smith, No. 06-CV-805, 2009 WL 3199531, *22 (N.D.N.Y. Jan. 13, 2009),

courts are “not required to credit conclusory allegations or legal conclusions couched as factual

allegations,” Iqbal, 556 U.S. at 678 (citation and alterations omitted). Plaintiff's Amended

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Complaint does not contain facts from which the Court could infer that Martuscello, Annucci,

Venettozzi, Rodriguez, or Rich proactively participated in reviewing his administrative appeals or

that any of them possessed the requisite information at the appropriate time to prevent, modify, or

correct Plaintiff's SHU sentence. His conclusory allegations contend only that the Defendants

could have done so by virtue of their supervisory position in either the chain of command or the

administrative review system for inmate disciplinary proceedings. However, the Court previously

apprised Plaintiff that the theory of respondeat superior is not available to impose personal liability

in a § 1983 action. Therefore, this claim is dismissed without further leave to amend.

5. Conditions of Confinement

It is well-established that the Eighth Amendment “does not mandate comfortable prisons.”

Rhodes v. Chapman, 452 U.S. 337, 349 (1981). To demonstrate that conditions of confinement

constitute cruel and unusual punishment in violation of the Eighth Amendment, a plaintiff must

satisfy both an objective and subjective element. See Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir.

1996). The objective element is met if the plaintiff alleges conditions that objectively posed an

unreasonable risk of serious damage to his health so as to deny him “the minimal civilized measure

of life’s necessities.” Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013). The subjective element

requires a plaintiff to allege that the defendant acted with deliberate indifference with regard to the

tisks posed by the condition. Jd. Deliberate indifference “entails something more than mere

negligence.” Farmer v. Brennan, 511 U.S. 825, 835 (1994) . A prison official acts with deliberate

indifference when he or she “knows of and disregards an excessive risk to inmate health or safety.”

Id. at 837.

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a. Mental Health Confinement

Plaintiff alleges that on August 3, 2020, after he asked to see a “mental health staff

provider,” he was escorted to the facility’s mental health hospital and placed in an observation

cell, where he spent the night naked; without sheets or a blanket, he was “very cold.” ECF No. 13

at 13,945. These allegations are contained in a section of the Amended Complaint asserting

retaliation claims. However, there is no apparent connection between this event and the acts that

Plaintiff alleges were retaliatory, to wit: searching his cell, damaging his typewriter, and assaulting

him. Jd, at 12-13. Moreover, Plaintiff does not allege the personal involvement of any Defendant

in this claim. Because the Court previously stressed the importance of alleging the personal

involvement of each and every defendant, this claim is dismissed without further leave to amend.

b. SHU confinement

Plaintiff contends that the conditions in SHU “were pretty bad: cold, loud, bugs, mice[,]

and extremely dirty,” and that his “neighbor” in SHU “spent hours after hour compulsively and

inexplicably screaming Plaintiffs name.” ECF No. 13 at 33-34 □ 145. Plaintiff alleges that

Annucci, Venettozzi, Rodriguez, Rich, and Carroll

were personally responsible for [authorizing] and maintaining the policies and

customs that resulted in the SHU conditions described[, and] that Annucci was

personally involved in authorizing and continuing the policies and customs that

govern the general conditions and deprivations in all SHU. As Directors of SHU,

Venettozzi and Rodriguez were and are personally [aware] of and responsible

reviewing and authorizing the SHU conditions maintained by the Superintendent

of Elmira. In particular, Directors of SHU Venettozzi and Rodriguez, were and are

aware that the policies and customs in regard SHU placed Plaintiff's physical safety

at risk. The Superintendent is personally responsible for the management of the

day-to-day conditions of SHU confinement at his [facility], and authorized and

continued policies that resulted in the SHU conditions.

Id. at 22, J 97; see also 35-36, { 154.

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Plaintiff's allegations do not suggest that Annucci, Venettozzi, Rodriguez, Rich, or Carroll

knew about the conditions Plaintiff was experiencing in SHU and disregarded them. Farmer, 511

U.S. at 837. To the extent that Plaintiff relies on the theory of respondeat superior, it is well settled

that, to state a § 1983 claim, a plaintiff must allege that the defendant violated the constitution “by

his [or her] own conduct, not by reason of [the defendant’s] supervision of others who committed

the violation.” Tangreti, 983 F.3d at 619. Therefore, a conclusory allegation that a defendant was

negligent in supervising his or her subordinates does not allege that the defendant violated the

plaintiffs constitutional right. As stated above, the doctrine of respondeat superior cannot be used

to establish liability in a § 1983 action. See Hernandez, 341 F.3d at 144. This claim is accordingly

dismissed without leave to amend.

ORDER

IT HEREBY IS ORDERED that Plaintiff’s retaliation claim may proceed to service upon

Naida and Rivera; his excessive force claim may proceed to service upon Naida; his failure to

intervene claim may proceed to service upon Rivera; and his due process claim may proceed to

service upon Rocker and Hubler; all other claims are dismissed; and the Clerk of Court shall

terminate from this action Defendants Carroll, Rich, Tompkins, Lang, Annucci, Wallace,

Martuscello, Venettozzi, Rodriguez, and John Doe 1-5; and it is further

ORDERED the Clerk of Court is directed to cause the United States Marshals Service to

serve copies of the summons, Amended Complaint, and this order upon Rocker, Naida, Rivera,

and Hubler without Plaintiff's payment therefore, unpaid fees to be recoverable if this action

terminates by monetary award in Plaintiff's favor; and it is further

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

the Amended Complaint upon service; and it is further

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ORDERED that the Clerk of Court is directed to email a copy of this order to Ted O’Brien,

Assistant Attorney General in Charge, Rochester Regional Office, at Ted.O’ Brien@ag.ny.gov; and

it is further

ORDERED that Plaintiff shall notify the Court in writing if his address changes. The Court

may dismiss the action if Plaintiff fails to do so. hy

IT IS SO ORDERED. □□

C0 |/_\)

Dated: Septembel® , 2023

Rochester, New York ON. FRANK P. GERACI

United States District Judge

Western District of New York

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