Grossman v. United States

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK USDC SDNY

DOCUMENT

YITZ GROSSMAN, ELECTRONICALLY FILED

Plaintiff DOC #:

anit DATE FILED: 02/19/2025

-against-

WARDEN B. VON BLACKENSEE, in her 19-ev-9191 (NSR)

individual Capacity, CAPTAIN MATT

WHINERY, in his individual Capacity, OPINION & ORDER

ASSISTANT/CAMP ADMINISTRATOR

CHRIS ENTZEL, in his individual capacity,

CHAPLAIN AVROHAM RICHTER, in his

individual capacity, J.L. MALDONADO, in his

individual capacity, and OFFICER AHAMAD

REZAK, a/k/a AHMED REZAK, in his

individual capacity,

Defendants.

NELSON S. ROMAN, United States District Judge:

Plaintiff Yitz Grossman (“Pro se Plaintiff’) commenced this action seeking redress for an

incident occurring during his incarceration at F.C.]. Otisville Satellite Camp.' In his Second

Amended Complaint (“SAC”), pro se Plaintiff asserts constitutional claims under Bivens v. Six

Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (Claims I-III), 42 U.S.C.

§ 1985(3) (Claim IV), and the Religious Freedom Restoration Act (“RFRA”) (Claim V) against

the Otisville Warden B. Von Blackensee, Captain Matt Whinery, Executive Assistant/Camp

Administrator Chris Entzel, Chaplain Avrohom Richter, and Associate Warden J.L. Maldonado

(“Supervisory Defendants”)? and Ahamad Rezak (“Defendant Rezak”) (collectively,

“Defendants”). Additionally, though not a named party to this action, pro se Plaintiff brings

' Pro se Plaintiff was released to home confinement in March 2019 and released from BOP custody altogether in

December 2019.

? Supervisory Defendants’ Memorandum in Support of Law (ECF No. 64) notes that the names of Supervisory

Defendant Whinnery and Defendant Rabbi Abraham Richter are misspelled in the caption.

constitutional and Federal Tort Claims Act (“FTCA”) claims against the United States (Claims VI,

VII, VIII, IX, and X). (ECF No. 55.)

Presently before the Court are Supervisory Defendants’ and Defendant Rezak’s respective

Motions to Dismiss the SAC pursuant to Fed. R. Civ. P. 12(b)(6). Further, in the SAC, pro se

Plaintiff seeks to amend the caption of this case to include Nicole Gulliver, a case manager with

the BOP, against which pro se Plaintiff alleges post-administrative retaliation and injuries. (SAC

fn. 1.) For the following reasons, Supervisory Defendants’ Motion to Dismiss is GRANTED in its

entirety and Defendant Rezak’s motion is GRANTED IN PART and DENIED IN PART. Pro se

Plaintiff’s request to add Nicole Gulliver to the instant case is DENIED.

FACTUAL BACKGROUND

For the purpose of ruling on the motion to dismiss, the Court accepts as true all well-

pleaded factual allegations in the SAC and draws all reasonable inferences in pro se Plaintiff's

favor, as summarized below.

A. Pro se Plaintiff’s Injury and Treatment

Pro se Plaintiff is an observant Orthodox Jew. (SAC ¶ 20.) As such, pro se Plaintiff is

required to adhere to certain religious restrictions on the Sabbath and holidays including refraining

from eating certain foods, writing, and directly using electricity. (Id. ¶¶ 20–21.) The SAC avers

that Otisville houses a large population of Jewish inmates and the administration is aware of Jewish

religious requirements as they pertain to inmates. (Id. ¶ 22.) For example, pro se Plaintiff and other

Jewish observers at Otisville dress differently on Jewish holidays and are allowed to wear white

clothing instead of the standard issue dark khaki uniform. (Id. ¶¶ 31–32.) BOP written policies

also provide details on religious requirements for the Sabbath and other holidays, stating that

“observant Jews from sunset Friday evening to one hour after sunset Saturday night do not use

electrical appliances, do not ride in a vehicle, do not write, cook, sew, nor turn electricity off and

on. (Id. ¶ 26.) Further, while the BOP permits the administration of small amounts of alcoholic

beverages during Jewish holidays, requiring a Jewish inmate to use a breathalyzer is considered a

violation of their religious observance because it activates an electric charge in order to produce a

reading. (Id. ¶¶ 35, 22, ECF No. 55-3.)

On September 17, 2017, Otisville administrators signed and posted a memo detailing the

upcoming Sukkot holiday. (Id. ¶ 43.) The memo noted that Sukkot was a weeklong holiday

beginning sundown on Wednesday, October 4, 2017 and ending at nightfall on Wednesday,

October 11, 2017, and that “a list of authorized participants will be made available to staff.” (Id.

¶¶ 47, 49.) The memo advised that a religious structure would be temporarily installed at Otisville

for the religious observance of Sukkot. (Id. ¶ 50.) The SAC avers that at all relevant times to the

instant complaint, a “Post Order” has been made available, which directed officers to postpone

any non-security random urinalysis or breathalyzer tests to observant Jews. (Id. ¶ 51.)

The SAC notes that the Federal Bureau of Prisons (“BOP”) utilizes the SENTRY system3

to enter an initial religious preference (“RLG”) of an incarcerated individual at their initial

classification, which the chaplain coordinates and oversees. (Id. ¶ 37.) The SAC alleges that the

SENTRY system is also used to produce a list of randomly selected inmate names for random

urinalysis for the month. (Id. ¶ 48.)

On Friday, October 6, 2017, pro se Plaintiff observed Sukkot with other members of the

Jewish community at Otisville. (Id. ¶ 53.) Pro se Plaintiff alleges that despite knowing that it was

a religious holiday, Warden Blackensee, JL Maldonado, Matt Whinnery and Chris Entzel ordered

drug testing at the facility. (Id. ¶ 55.)

3 SENTRY is the BOP’s primary mission support database. The system collects, maintains, and tracks critical

inmate information, including inmate location, medical history, behavior history, and release data.

Defendant Rezak was dispatched to Otisville to administer random urinalysis and

breathalyzer tests. (Id. ¶ 60.) According to the SAC, Officer Rezak was known to be abusive

towards Jewish inmates and their families. (Id. ¶ 30.) The SAC alleges that while forty percent of

Otisville camp at that time was Jewish, nearly all of those called to submit to random testing that

day were Jewish. (Id. ¶ 62.) Pro se Plaintiff was paged to the officers’ station and Defendant

Rezak informed pro se Plaintiff that he had been summoned to take a urine and breathalyzer test.

(Id. ¶ 65.) Pro se Plaintiff responded that he was prohibited from complying with the request due

to the religious holiday. (Id. ¶ 66.) The SAC states that Defendant Rezak responded that he “did

not care” and further informed pro se Plaintiff that if he did not take the breathalyzer and urinalysis,

he would send pro se Plaintiff to solitary confinement in the SHU (Special Housing Unit). (Id. ¶

70.) Pro se Plaintiff asked Rezak to postpone the urinalysis and breathalyzer until after the holiday

or call the lieutenant on duty to further discuss the issue, but Defendant Rezak allegedly refused

and threatened to send pro se Plaintiff to solitary confinement if he did not comply. (Id. ¶¶ 71–72.)

Pro se Plaintiff alleges that Defendant Razak was motivated by discriminatory animus toward

Jewish people. (SAC ¶¶ 33, 34, 45). Pro se Plaintiff submitted to the breathalyzer test and

urinalysis in fear of repercussions by Defendant Rezak. (Id. ¶ 76.) By submitting to the tests, pro

se Plaintiff was forced to violate his religious obligations by using a writing utensil (since he had

to affix his signature to related paperwork) and using electricity by blowing into the breathalyzer.

(Id. ¶ 77.)

B. Related Administrative Proceedings and Alleged Retaliation

Beginning on October 10, 2017, pro se Plaintiff filed a series of administrative complaints

pursuant to the BOP’s four-step Administrative Remedy Program. (Id. ¶¶ 121–49; see 28 C.F.R.

§ 542.10 et seq.) On March 27, 2018, the National Inmate Appeals wrote back to pro se Plaintiff

rejecting his claim and agreeing with Warden Blackensee’s handling of pro se Plaintiff’s issue. At

all stages of the BOP Administrative Remedies Program, pro se Plaintiff’s claims focused on

allegations against Defendant Rezak regarding the incident on October 6, 2017 and pro se

Plaintiff’s request to have Defendant Rezak removed from the facility. (Id. ¶ 149.) Supervisory

Defendants submitted a declaration containing a copy of the administrative tort claim that pro se

Plaintiff further filed with a Regional Office of the Federal Bureau of Prisons (“BOP”) on October

3, 2019. (ECF No. 65-1.) Pro se Plaintiff’s FTCA claim was denied on October 8, 2019 for failure

to allege a physical injury under the FTCA. (ECF No. 65-2.) The denial letter states that pro se

Plaintiff could bring an action against the United States within six months of the date of the letter

if he dissatisfied with the decision. (Id.) There is no indication based on the materials the received

by the Court in the instant case that pro se Plaintiff filed an action within that time frame.

Further, pro se Plaintiff alleges that Nicole Gulliver (a non-party) was responsible for

retaliatory acts against him following his pursuit of administrative remedies (SAC ¶ 152.) The

SAC asserts that pro se Plaintiff suffered extreme emotional distress and subsequently suffered a

heart attack requiring a triple bypass heart surgery in June 2018. (SAC ¶ 156.) Pro se Plaintiff

asserts that he continues to suffer from anxiety and depression from the trauma caused by the

incident on October 6, 2017. (Id. ¶ 84.)

Based on the foregoing, pro se Plaintiff brings claims under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (Claims I–III), 42 U.S.C. § 1985

(Claim IV), and Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 (Claim V). Pro se

Plaintiff also brings five claims against the United States for violations against pro se Plaintiff’s

constitutional rights and New York Common Law (Counts VI–X). Pro se Plaintiff also seeks to

add Nicole Gulliver as a defendant in the instant case.

RELEVANT PROCEDURAL HISTORY

Pro se Plaintiff filed his initial complaint pro se October 4, 2019. (ECF No. 2.) In an Order

issued by this Court dated November 8, 2019, the Court dismissed several claims raised in pro se

Plaintiff’s initial complaint for failure to state a claim and on immunity grounds. Pro se Plaintiff's

claims against Defendant Rezak arising under Bivens and RFRA survived. (ECF No. 4.) The Court

terminated all defendants except Defendant Rezak and granted pro se Plaintiff leave to file an

amended complaint. Pro se Plaintiff filed an Amended Complaint on December 26, 2019. (ECF

No. 5.)

Between 2020 and mid-2023, Plaintiff struggled to properly serve all Defendants. Further,

this Court issued two separate Orders to Show Cause during that time frame due to pro se

Plaintiff’s lack of communication with the Court. (See ECF Nos. 12, 20.) Plaintiff was warned that

failure to comply would result in dismissal of this case for want of prosecution. Pro se Plaintiff

responded to the most recent Order to Show Cause on February 14, 2023. (ECF No. 21.) With the

assistance of private counsel4, Plaintiff filed a Second Amended Complaint on February 26, 2024.

(ECF No. 55.) Supervisory Defendants and Defendant Rezak filed respective motions to dismiss

on June 13, 2024. (ECF Nos. 63, 67) as well as corresponding Memoranda of Law in Support of

their motions. (ECF Nos. 64, 68.) Plaintiff did not file any opposition briefs by the designated date

(May 24, 2024) and was granted an extension until December 20, 2024 to respond. (See ECF No.

47.) As of the filing of this Opinion and Order, pro se Plaintiff has neither filed any oppositions

to either motion to dismiss nor communicated with the Court since February 2024.

4 Pro se Plaintiff was represented by Steven A. Feldman, Esq. from November 28, 2023 until October 21, 2024

when the Court granted counsel’s motion to withdraw, after which Plaintiff was deemed to be proceeding pro se.

(See ECF No. 70.)

LEGAL STANDARDS

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”) provides in relevant part, that a

case is properly dismissed for lack of subject matter jurisdiction when the district court lacks the

statutory or constitutional power to adjudicate it. When resolving a Rule 12(b)(1) motion for lack

of lack of subject matter jurisdiction, the court may refer to evidence outside the pleadings. See

Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986). Pro se Plaintiff bears the

burden of demonstrating by a preponderance of the evidence that subject matter jurisdiction exists.

See Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996).

B. Rule 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), dismissal is proper unless the complaint

“contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). When there are well-pled factual allegations in the complaint, “a court

should assume their veracity and then determine whether they plausibly give rise to an entitlement

to relief.” Id. at 679. While the Court must take all material factual allegations as true and draw

reasonable inferences in the non-moving party’s favor, the Court is “not bound to accept as true a

legal conclusion couched as a factual allegation,” or to credit “mere conclusory statements” or

“[t]hreadbare recitals of the elements of a cause of action.” Id. at 678 (quoting Twombly, 550 U.S.

at 555). The Second Circuit “deem[s] a complaint to include any written instrument attached to it

as an exhibit or any statements or documents incorporated in it by reference . . . and documents

that plaintiffs either possessed or knew about and upon which they relied in bringing the suit.”

Rotham v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (internal citations omitted). The critical inquiry

is whether the pro se Plaintiff has pled sufficient facts to nudge the claims “across the line from

conceivable to plausible.” Twombly, 550 U.S. at 570. A motion to dismiss will be denied where

the allegations “allow[] the court to draw the reasonable inference that the Defendant is liable for

the misconduct alleged.” Iqbal, 556 U.S. at 678.

The present motion is unopposed by the pro se Plaintiff. However, failure to oppose a

motion to dismiss is not in itself grounds for dismissal. Mateo v. Westchester Cnty., No. 18-CV-

03499 (NSR), 2020 WL 5802838, at *3 (S.D.N.Y. Sept. 29, 2020) (quoting McCall v. Pataki, 232

F.3d 321, 322 (2d Cir. 2000)) (“The same principle [as applies to Fed. R. Civ. P. 12(c) motions] is

applicable to a motion pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss an action on the basis of the

complaint alone.”) Since the veracity of well-pled facts in the complaint is not in dispute during

12(b)(6) proceedings, the court is only required to rule on matters of law, which it is equipped to

do regardless of the lack of opposition from a plaintiff. McCall at 322-323. Thus, the legal standard

for a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted does

not change based on the presence or absence of reply from a plaintiff. See id.

DISCUSSION

I. Alleged Constitutional Violations under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics (Claims I-III)

Pro se Plaintiff alleges that Supervisory Defendants and Defendant Rezak violated his First

Amendment right to free exercise of religion (SAC ¶¶ 200 (Claims I)), his Fifth Amendment rights

to due process and equal protection (Id. ¶ 209 (Claim II)), and his Eighth Amendment right to be

free of cruel and unusual punishment (Id. ¶ 222 (Claim III)). Pro se Plaintiff asserts these claims

under Bivens in which the Supreme Court recognized “an implied private action for damages

against federal officers alleged to have violated a citizen's constitutional rights.” McGowan v.

United States, 825 F.3d 118, 123 (2d Cir. 2016) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S.

61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001)). For the reasons that follow, the Court grants

Supervisory Defendants’ and Defendant Rezak’s motions to dismiss pro se Plaintiff’s Bivens

claims without prejudice to renew.

A. Bivens Claims against Supervisory Defendants

This Court has previously dismissed pro se Plaintiff’s Bivens claims against Supervisory

Defendants asserted in his initial complaint for failing to demonstrate their personal involvement

in any alleged deprivation of constitutional rights. (ECF No. 4.) Like the pleadings before, the

SAC also fails to articulate Supervisory Defendants’ personal involvement, thus necessitating the

Court dismissal of the Bivens claims against Supervisory Defendants under the law-of-the case

doctrine.

The law-of-the-case doctrine “holds that when a court has ruled on an issue, that decision

should generally be adhered to by the court in subsequent stages unless cogent and compelling

reasons militate otherwise.” Delville v. Firmenich Inc., 23 F. Supp. 3d 414, 425 (S.D.N.Y. 2014)

(quoting United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)). See also In re Peters, 642

F.3d 381 (2d Cir. 2011) (noting that while not binding the law-of-the-case doctrine counsels against

a court revisiting prior rulings absent compelling reasons such as the need to correct a clear error

or prevent manifest injustice).

As in the initial complaint, the only allegations against Blackensee, Whinnery, Entzel, and

Maldonado were that they supervised or were responsible for the supervision of Defendant Rezak.

Scant allegations against Chaplain Richter, viewed in the light most favorable to pro se Plaintiff,

fail to connect Richter to any unconstitutional conduct against pro se Plaintiff.

A plaintiff asserting claims under Bivens must allege facts showing the defendants’ direct

and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep't

of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal

involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award

of damages) (internal quotation marks omitted). A defendant may not be held liable under Bivens

solely because that defendant employs or supervises a person who violated the plaintiff's rights.

See Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional

conduct of their subordinates under a theory of respondeat superior.”). A plaintiff “must plead and

prove the elements of the underlying constitutional violation directly against the official.”

Reynolds v. United States, No. 21-CV-4763 (NSR), 2021 WL 3501201, at *2 (S.D.N.Y. Aug. 9,

2021) (quoting Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020)).

Here, the SAC does not offer substantive allegations that would indicate Supervisory

Defendants direct involvement in any purported constitutional violations. Further, pro se

Plaintiff’s inferences that their actions were rooted in malicious or discriminatory purposes are

merely conclusory. Accordingly, the Court finds that pro se Plaintiff’s SAC remains deficient for

reasons the Court articulated in its prior opinion as to the Supervisory Defendants. Pro se Plaintiff

has not plausibly alleged viable Bivens claims against the Supervisory Defendants and the Court

grants the Supervisory Defendants’ motion to dismiss within respect to pro se Plaintiff’s Bivens

claims without prejudice.

B. Bivens Claims against Defendant Rezak

Defendant Rezak’s claims are not precluded under the law-of-the-case doctrine because the

Court did not substantively rule on them in its prior Order. Therefore, the Court addresses them

now. For the reasons below, the Court also grants Defendant Rezak’s motion to the dismiss pro se

Plaintiff’s Bivens claims.

In Bivens, the Supreme Court recognized “an implied private action for damages against

federal officers alleged to have violated a citizen's constitutional rights.” Carattini v. Behun, No.

21 CIV. 9373 (NSR), 2024 WL 3274663 (S.D.N.Y. July 2, 2024) (quoting McGowan v. United

States, 825 F.3d 118, 123 (2d Cir. 2016)). To state a claim under Bivens, “a plaintiff must allege

that an individual defendant personally committed a specific wrongful act that violated a well-

established constitutional right of which a reasonable person would have known.” Adekoya v.

Holder, 751 F. Supp. 2d 688, 694 (S.D.N.Y. 2010) (citing Barbera v. Smith, 836 F.2d 96, 99 (2d

Cir. 1987) ); see Barbaro v. United States, 521 F. Supp. 2d 276, 281 (S.D.N.Y. 2007) (“The

elements of a Bivens claim are: (1) that a defendant acted ‘under color of federal law’ (2) ‘to

deprive plaintiff of a constitutional right.’”) (quoting Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir.

1995)).

The Supreme Court has recognized Bivens claims in only three circumstances in 54 years:

(1) unreasonable search and seizure under the Fourth Amendment, Bivens, 403 U.S. 388 (1971),

(2) employment discrimination under the Fifth Amendment, Davis v. Passman, 442 U.S. 228, 99

S.Ct. 2264, 60 L.Ed.2d 846 (1979), and (3) inadequate medical treatment of an inmate under the

Eighth Amendment, Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).

Following Bivens, Davis, and Carlson, the Supreme Court has retreated from recognizing implied

damages remedies under the Constitution and “made clear that expanding the Bivens remedy is

now a disfavored judicial activity.” See Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (internal

quotation marks and citation omitted).

A court evaluating a Bivens claim conducts a two-step inquiry to determine whether to

imply a Bivens cause of action in a new context or against a new category of defendants. Carattini

v. Behun, No. 21 CIV. 9373 (NSR), 2024 WL 3274663, at *3 (S.D.N.Y. July 2, 2024) (citing

Abbasi at 135–38). First, a court considers “whether the case presents ‘a new Bivens context’—

i.e., is it ‘meaningful[ly]’ different from the three cases in which the [Supreme] Court has implied

a damages action.” Abbasi at 139. Second, if a “new context” is presented, a court considers

whether “‘special factors’ indicat[e] that the Judiciary is at least arguably less equipped than

Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’” Abbasi at

140. The Supreme Court has found that a Bivens remedy “is an extraordinary thing that should

rarely if ever be applied in ‘new contexts.’” Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009)

(citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001)). A Bivens remedy is not available,

“where there are ‘special factors counselling hesitation in the absence of affirmative action by

Congress,’” (Grossman v. United States, No. 19-CV-9191 (NSR), 2019 WL 5887365, at *3

(S.D.N.Y. Nov. 8, 2019)) (quoting Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017)).

Here, the SAC avers that Defendant Rezak directly violated pro se Plaintiff’s First

Amendment right to free exercise of religion, his Fifth Amendment rights to due process and equal

protection, and his Eighth Amendment right to be free of cruel and unusual punishment. (SAC, ¶¶

200, 209, 222.) While supporting allegations of personal involvement, none of these claims fall

into the three circumstances recognized by the Supreme Court in Bivens, Davis, or Carlson. As to

pro se Plaintiff’s First Amendment claims, the Supreme Court has “never held that Bivens extends

to First Amendment claims.” Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012). Further holding

that “prisoners have no right to bring a Bivens action for violation of the First Amendment."

Caraballo v. Pliler, No. 21- CV-10476, 2023 WL 3467185, at *7 (S.D.N.Y. May 15, 2023)

(citations omitted). Pro se Plaintiff’s First Amendment claims meaningfully differ from the three

instances recognized by the Supreme Court, thereby creating a new context under Bivens. Next,

courts in this Circuit have repeatedly held that prisoners’ Fifth Amendment claims constitute a

new context. See, e.g., Negron v. United States, No. 19-CV-05442 (PMH), 2020 WL 5634304, at

*8 (S.D.N.Y. Sept. 21, 2020) (inmate’s Fifth Amendment claim arose in “a new racial and/or

religious context”); Oneil v. Rodriguez, No. 18-CV-3287 (AMD) (LB), 2020 WL 5820548, at *3

(E.D.N.Y. Sept. 30, 2020) (“equal protection claim based on treatment in prison” presents a new

context). Pro se Plaintiff’s claims are meaningfully different from the Fifth Amendment-based

gender employment discrimination claims in Davis. Finally, although Carlson recognized a

remedy for violation of a prisoner's Eighth Amendment rights, the plaintiff there was claiming

failure to provide adequate medical treatment, not excessive force like pro se Plaintiff in the instant

case. See Ojo v. United States, No. 16-CV-4112, 2019 WL 3852391, at * 13 (E.D.N.Y. Aug. 15,

2019) (“Since no Supreme Court decision has ever extended Bivens to encompass the specific

context presented by plaintiff's excessive force claims, this cause of action presents a new Bivens

context.”)

Since all three of pro se Plaintiff’s Bivens claims assert causes of action in a new context

the Court turns the second part of the Abbasi inquiry and evaluates whether “special factors

counsel[] hesitation in the absence of affirmative action by Congress.” Abbasi at 136. The Supreme

Court did not offer an “exhaustive list of differences that are meaningful enough to make a given

context a new one,” but has offered in examples that “might prove instructive.” Id. Special factors

counsel against extending Bivens to new context in pro se Plaintiff’s claims, including

Congressional deference and the availability of other alternative remedies to pro se Plaintiff. See

e.g. Egbert v. Boule, 596 U.S. 482, 492, 142 S. Ct. 1793, 1803, 213 L. Ed. 2d 54 (2022) (“new

contexts… represent situations in which a court is not undoubtedly better positioned than Congress

to create a damages action"). Courts have often noted the undesirability of excessive judicial

intervention into prison administration, as “the problems that arise in the day-to-day operation of

a corrections facility are not susceptible of easy solutions.” Schulte v. Bureau of Prisons, No. 20-

cv-2795, 2022 WL 1468017, at *4 (S.D.N.Y. May 10, 2022) (citing Bell v. Wolfish, 441 U.S. 520,

547 (1979)). The Court finds that those factors weigh against allowing pro se Plaintiff’s Bivens

claims against Defendant Rezak to proceed and dismisses pro se Plaintiff’s claims without

prejudice.

II. Violation of 42 U.S.C. § 1985, Conspiracy To Interfere With Civil Rights (Claim IV)

Next, pro se Plaintiff claims that the Defendants violated 42 U.S.C. § 1985(3) by conspiring

to deprive pro se Plaintiff of his right to equal protection under the law, primarily by inferring a

failure to adhere to or by manipulating the SENTRY system. (SAC ¶¶ 234–39.) The Court does

not find that pro se Plaintiff offers any support for allegations of such or any conspiracy. Further,

the intra-corporate conspiracy doctrine renders Defendants legally incapable of conspiring.

Accordingly, the Court grants Defendants’ motions to dismiss pro se Plaintiff’s 1985(3) claims

with prejudice.

42 U.S.C. § 1985(3) prohibits two or more persons from conspiring for the purpose of

depriving any person of the equal protection of the laws or of equal privileges and immunities

under the laws. To adequately plead a claim under § 1985(3), a plaintiff must allege “(1) a

conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of

persons of equal protection of the laws, or of equal privileges and immunities under the laws; [and]

(3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or

property or deprived of any right of a citizen of the United States.” Mian v. Donaldson, Lufkin &

Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). Furthermore, “[t]he conspiracy must also

be ‘motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus.’”

Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015) (quoting Cine SK8, Inc. v. Town of Henrietta,

507 F.3d 778, 791 (2d Cir. 2007)).

As an Orthodox Jew, pro se Plaintiff is within the scope of the protections accorded by 42

U.S.C. § 1985(3). See LeBlanc-Sternberg v. Fletcher, 781 F. Supp. 261, 269 (S.D.N.Y. 1991)

(“[R]eligious-based discrimination is clearly within the ambit of this particular statute.) However,

pro se Plaintiff does not sufficiently allege a conspiracy between Defendants. See Brito v. Arthur,

403 F. App'x 620, 621 (2d Cir. 2010) (“A § 1985 conspiracy claim that is only supported by

conclusory assertions cannot survive a motion to dismiss.”); see also Boddie v. Schneider, 105

F.3d 861, 862 (2d Cir.1997) (holding that a § 1985 conspiracy claim must state a factual basis, as

“a complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a

person of constitutional rights cannot withstand a motion to dismiss” (internal citations and

quotations omitted)). A complaint must allege overt acts in furtherance of the conspiracy “with at

least some degree of particularity.” Thomas v. Roach, 165 F.3d 137, 147 (2d Cir. 1999). Here, the

SAC fails to offer particularized allegations against Defendants as to any explicit act in furtherance

of a conspiracy. Pro se Plaintiff’s tenuous allegations as to Defendants’ use or disregard of

SENTRY protocol for the administration of urinalysis and breathalyzer tests on Sukkot are simply

conclusory. (See SAC ¶¶ 237–38.) Pro se Plaintiff does not provide sufficient allegations to

support inferences that Defendants acted in concert or agreed, in any way, to deprive pro se

Plaintiff of his rights via any manipulation or disregard of the SENTRY system or otherwise. Pro

se Plaintiff’s conclusory allegations are not sufficient to sustain § 1985 conspiracy claims.

Moreover, even if pro se Plaintiff was given leave to amend the § 1985 claims against

Defendants, Defendants are legally incapable of conspiring together under the intra-corporate

conspiracy doctrine and, as a result, pro se Plaintiff’s claims are dismissed with prejudice. The

intra-corporate conspiracy doctrine “provides that employees or agents of a single corporate entity,

acting within the scope of their employment, are legally incapable of conspiring together” under §

1985 Rolkiewicz v. City of New York, 442 F. Supp. 3d 627, 648 (S.D.N.Y. 2020) (quoting Ali v.

Connick, 136 F. Supp. 3d 270, 282 (E.D.N.Y. 2015)). During the relevant times of the SAC,

Supervisory Defendants and Defendant Rezak were all employed at FCI Otisville and are,

therefore, incapable conspiring for the purposes of § 1985. Further, alleged personal bias is not

sufficient to defeat the intra-corporate conspiracy doctrine. See e.g., Coggins v. County of Nassau,

E.D.N.Y.2013, 988 F.Supp.2d 231, affirmed in part, appeal dismissed in part 776 F.3d 108,

certiorari denied 135 S.Ct. 2335, 575 U.S. 1011, 191 L.Ed.2d 981. As a result, pro se Plaintiff's §

1985 claims are dismissed with prejudice as to all Defendants.

III. Violation of Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1

(Claim V)

Next the Court turns to pro se Plaintiff’s RFRA claims. Pro se Plaintiff alleges that by

compelling pro se Plaintiff to submit to drug testing Defendants forced him to violate his religious

commitments. (SAC ¶¶ 242–46.) Among other things, RFRA prohibits the federal government

from substantially burdening a person's exercise of religion, “even if the burden results from a rule

of general applicability,” 42 U.S.C. § 2000bb–1(a), except when the Government can

“demonstrat[e] that application of the burden to the person—(1) [furthers] a compelling

governmental interest; and (2) is the least restrictive means of furthering that ... interest,” §

2000bb–1(b). Gonzales v. O’Centro Espirata Benificiente Uniao do Vegetal, 546 U.S. 418 (2006).

For the reasons below, the Court grants Supervisory Defendants’ motion to dismiss pro se

Plaintiff’s RFRA claim without prejudice and denies Defendant Rezak’s motion to dismiss the

RFRA claim against him.

A. RFRA Claims against Supervisory Defendants

As with Bivens claims against the Supervisor Defendants, this Court has previously

dismissed pro se Plaintiff’s RFRA claims against Supervisory Defendants for failure to

demonstrate their personal involvement in any alleged violations. As in the initial complaint, the

SAC does not offer substantive allegations that would indicate Supervisory Defendants were

directly involved in any purported burdening of pro se Plaintiff’s religion. In fact, the SAC notes

the various ways in which Supervisory Defendants supported religious observances through

policies, memos, guidelines, and a post order aimed at religious accommodations for incarcerated

Jewish individuals.

Since the SAC does not supply new or sufficient facts to support RFRA claims against the

Supervisory Defendants, the law-of-the-case doctrine is applicable here as well. See, e.g.,

Stapleton v. Pagano, No. 19-CV-952 (KMK), 2021 WL 3501163, at *4 (S.D.N.Y. Aug. 9, 2021)

(“Because the factual claims in the Amended Complaint are materially identical to those in the

Complaint, the law of the case doctrine counsels against reconsideration of the Court’s . . .

dismissal of the first Complaint.” (quotation marks omitted)). Therefore, as currently written, the

sac repeats the factual deficiencies in the initial complaint by failing to assert plausible RFRA

claims against Supervisory Defendants. As such, the Court grants Supervisory Defendants’ motion

to dismiss pro se Plaintiff’s claims without prejudice.

B. RFRA Claims against Defendant Rezak

As for allegations against Defendant Rezak, the Court finds that pro se Plaintiff has

sufficiently pled that Defendant Rezak burdened pro se Plaintiff’s exercise of his religious by

obligating him to complete a urinalysis and breathalyzer test during Sukkot under protest. (SAC

¶¶ 66–77.) Defendant Rezak had been placed on notice of the religious holiday. Observance of

Sukkot had been publicized via an official BOP memo, a large and centrally visible religious

structure had been erected at Otisville, and at least some Jewish observers wore non-standard

clothing to signify their religious observances on that day. (Id. ¶¶ 31, 32, 43, 51, 52.) Pro se

Plaintiff alerted Defendant Rezak of his religious obligations when pro se Plaintiff was summoned

to complete urine and breathalyzer tests. (Id. ¶ 66.) Further, pro se Plaintiff offered to take the tests

after the Jewish holiday and asked for to speak to a superior officer to further discuss the issue, as

an attempt to comply with the BOP policy and his religious practices. (Id. ¶ 71.) Plaintiff alleges

that Defendant Rezak could have pursued less restrictive means to ensure that pro se Plaintiff

complied with both testing and religious requirements instead of threatening to punish pro se

Plaintiff with solitary confinement. (Id. ¶ 66.) Accepting pro se Plaintiff’s allegations as true and

viewing them in a light most favorable to the pro se Plaintiff for the purposes of ruling on the

motion to dismiss, the Court finds that pro se Plaintiff has adequately supported his RFRA claim

against Defendant Rezak at this stage.

While Defendant Rezak raises a qualified immunity defense in his support brief, courts in this

Circuit have long held that qualified immunity “turns on factual questions that cannot be resolved

at [the motion to dismiss] stage of proceedings.” See Taylor v. Vermont Dep't of Educ., 313 F.3d

768, 793 (2d Cir.2002); see also Denton v. McKee, 332 F. Supp. 2d 659, 666 (S.D.N.Y. 2004)

(“[r]esolution of qualified immunity depends on the determination of certain factual questions that

cannot be answered at this stage of the litigation.” Denton v. McKee, 332 F.Supp.2d 659, 666

(S.D.N.Y.2004). As such, the Court denies Defendant Rezak’s motion to dismiss the RFRA

claims.

IV. Claims Against the U.S. Government (Claims VI–X)

The Government moves to dismiss claims against the United States, which is not a named

defendant in this action, for lack of subject-matter jurisdiction. The SAC alleges retaliation First

Amendment and Fourteenth Amendment claims against the United States (Claim VI). (SAC ¶

248.) Pro se Plaintiff also asserts claims against the United States under the Federal Tort Claims

Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80, specifically pro se Plaintiff raises an FTCA claim

based on “[r]etaliation under New York Common Law” (Claim VII) (Id. ¶¶ 254–56)), FTCA

claims for negligent and intentional infliction of emotional distress (Claims VIII and IX,

respectively) (Id. ¶¶ 260, 268, and an FTCA claim for negligent hiring, training, retention and

supervision (Claim X) (Id. ¶ 272). The Court agrees that the United States has not waived sovereign

immunity and therefore all claims against it are dismissed, with prejudice, for lack of subject-

matter jurisdiction.

A. Constitutional Claims (Claim VI)

Supervisory Defendants argue that pro se Plaintiff’s First and Fourteenth Amendment

retaliation claims must be dismissed because the United States has “not waived its sovereign

immunity with respect to claims that its employees have committed constitutional torts.” (Def.

Mem. p. 20.) (quoting Alston v. Sebelius, No. 13-CV-4537, 2014 WL 4374644, at *8 (E.D.N.Y.

Sept. 2, 2014). The Court agrees. Claims that the United States or its employees unconstitutionally

retaliated against pro se Plaintiff are barred by sovereign immunity. See, e.g., Cohen, 640 F. Supp.

3d at 344 (dismissing First Amendment retaliation claim because the United States “‘has not

waived . . . sovereign immunity with respect to claims that [government] employees have

committed constitutional torts’ under the federal constitution” (quoting Hernandez v. United

States, 939 F.3d 191, 205 (2d Cir. 2019)).

Further, pro se Plaintiff requests that Nicole Gulliver, a non-party, as a new defendant for

alleged retaliation claims. The Court denies pro se Plaintiff’s request because his retaliation

allegations against Gulliver are distinct from claims in the instant case. Accordingly, pro se

Plaintiff is directed to commence a separate action if he wishes to seek redress for the alleged

retaliation claims against Gulliver, taking note of any potential statute of limitations that may

apply.

B. FTCA Claims (Claims VII – X)

The Government further contends that the FTCA waiver of sovereign immunity for

common-law torts is limited and preconditioned on the exhaustion of administrative remedies and

pro se Plaintiff has failed to exhaust those remedies here. (ECF No. 64, p. 16.) The Court agrees

and grants Supervisory Defendants’ motion to dismiss claims against the United States with

prejudice.

Before an action may be filed under the Federal Tort Claims Act, “an administrative claim

must be presented to the federal agency employing the person whose act or omission caused the

injury.” Valdez v. United States, No. 08-cv-4424, 2009 WL 2365549, at *5 n.7 (S.D.N.Y. July 31,

2009). “Presentation of an administrative claim to the appropriate agency is a jurisdictional

prerequisite to suit.” Id. (citing 28. U.S.C. § 2675(a) To satisfy the FTCA’s presentment

requirement, a plaintiff “must provide a reviewing agency with sufficiently specific information

as to the basis of the claim, the nature of claimant’s injuries, and the amount of damages sought

such that the agency can reasonably understand what it must investigate to determine liability, to

value the claim, and to assess the advisability of settlement.” Collins v. United States, 996 F.3d

102, 119 (2d Cir. 2021). “Without a specific description of injuries, the ability of the government

to expedite the fair settlement of tort claims—the purpose of the exhaustion requirement—is lost.”

Guthrie v. US Fed. Bureau of Prisons, No. 09 CIV. 990 (LAP), 2010 WL 2836155, at *4 (S.D.N.Y.

July 7, 2010), aff’d, 421 F. App’x 120 (2d Cir. 2011).

To exhaust relevant administrative remedies as an incarcerated individual, a “federal

inmate[ ] must comply with the BOP's Administrative Remedy Program, a multi-step process for

inmates who ‘seek formal review of an issue relating to any aspect of his/her own confinement.’”

Rosenberg v. Pliler, No. 21-CV-5321, 2021 WL 6014938, at *2 (S.D.N.Y. Dec. 20, 2021) (quoting

28 C.F.R. § 542.10(a)). The BOP's Administrative Remedy Program consists of a four-step

process: (1) an inmate must first attempt to resolve the issue informally by presenting the issue to

the prison staff, 28 C.F.R. § 542.13; (2) if the issue is not resolved, the inmate must then submit a

Request for Administrative Remedy (BP-9) form to the Warden within 20 days of the incident that

forms the basis of the request, Id. § 542.14; (3) if the request is denied, the inmate may appeal the

decision using a BP-10 form to the Regional Director within 20 days of the date that the Warden

signed the response, Id. § 542.15(a); and finally, (4) if the inmate is not satisfied with the Regional

Director's response, he may appeal within 30 days to the General Counsel in the Central Office

using a BP-11 form. Id. “No administrative remedy appeal is considered finally exhausted until it

is considered by BOP's Central Office.” (S.D.N.Y. Oct. 6, 2021). LoCurto v. United States Bureau

of Prisons, No. 23-CV-387-DG-SJB, 2024 WL 4884343, at *5 (E.D.N.Y. Aug. 12, 2024) (citing

Cruz v. Hastings, No. 20-CV-4392, 2021 WL 4691375, at *4 (S.D.N.Y. Oct. 6, 2021)).

Administrative exhaustion, is “jurisdictional, [and] cannot be waived.” Celestine v. Mount Vernon

Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005). If the plaintiff fails to first present his

claim to the appropriate agency and exhaust administrative remedies, then the plaintiff's tort claims

must be dismissed. Robinson v. Overseas Mil. Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (citing

McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980, 1983–84, 124 L.Ed.2d 21 (1993)); Foster

v.Fed. Emergency Mgmt. Agency, 128 F. Supp. 3d 717, 728 (E.D.N.Y. 2015) (“Failure to comply

with [exhaustion] results in dismissal of the suit.”).

Accepting pro se Plaintiff’s assertions as true and viewing them in the most favorable light

to pro se Plaintiff, pro se Plaintiff did not properly exhaust his administrative remedies. Pro se

Plaintiff began informal resolution with prison staff prior to filing his BP-9 (step 2) on October 10,

2017. (SAC ¶¶ 92, 98.) Pro se Plaintiff was instructed to submit a BP-8 on October 17, 2018 and

received a response on October 23, 2017 from Camp Administrator Chris Entzel, stating that Pro

se Plaintiff’s complaint was forwarded to the appropriate office for investigation. (SAC ¶ 101.)

Pro se Plaintiff reports that he was unhappy with results of the administrative complaints filed and

filed a BP-10 (step 3) dated November 9, 2017 and was rejected on November 21, 2017 for failure

to provide a copy of the BP-09 response from the warden. (SAC ¶ 139.) Pro se Plaintiff then re-

submitted on December 12, 2017 and attached all the required materials. (SAC ¶ 145.) Finally,

Pro se Plaintiff submitted a BP-11 (step 4) on January 29, 2018 and it was received by the Federal

BOP’s Administrative Remedy Section on February 5, 2018. (SAC ¶ 148.) On March 27, 2018,

the National Inmate Appeals wrote back to pro se Plaintiff rejecting his claim and agreeing with

Warden Blackensee’s handling of pro se Plaintiff’s issue. In each of these filings pro se Plaintiff

alleged that Defendant Rezak violated his religious rights on October 6, 2017 and was seeking his

removal (ECF. Nos. 55-6, 55-7, 55-8, 55-9, 55-11.) At no point during the BOP administrative

process did pro se Plaintiff explicitly assert the FTCA claims asserted in his SAC—retaliation;

negligent and intentional infliction of emotional distress; or negligent hiring, training, retention

and supervision claims. Moreover, pro se Plaintiff did not specify the nature of his injuries, and

the amount of damages sought required to assess the advisability of liability and settlement.

Pro se Plaintiff failed to properly exhaust his administrative remedies and there is no

indication in the SAC or the docket that pro se Plaintiff pursued any further action following

denial. Supervisory Defendants annexed the denial letter of pro se Plaintiff’s administrative tort

claim filed a Regional Office of the Federal Bureau of Prisons (“BOP”) on October 3, 2019. (ECF

No. 65-1.) Pro se Plaintiff’s FTCA claim had been denied in a letter dated October 8, 2019 for

failing to allege a physical injury under the FTCA. (ECF No. 65-2.) The Court incorporates this

letter into its analysis because, “when resolving a Rule 12(b)(1) motion for lack of lack of subject

matter jurisdiction, the court may refer to evidence outside the pleadings.” See Kamen v. American

Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986). The denial letter states that pro se Plaintiff

could bring an action against the United States in an appropriate federal court within six months

of the date of the letter. Even if pro se Plaintiff had properly raised the FTCA claims during the

BOP process and exhausted administrative remedies, there is no indication in the SAC or the

docket that pro se Plaintiff pursued any further action, thereby time-barring his claims.

28 U.S.C. § 2401(b) establishes a second limitations period – that “[a] tort claim against the

United States shall be forever barred ... unless action is begun within six months after the . . . final

denial of the claim by the agency to which it was presented.” (28 U.S.C. § 2401(b). A time-barred

FTCA claim must be dismissed with prejudice. See Barone v. United States, No. 12 Civ. 4103

(LAK), 2014 WL 4467780, at *14 (S.D.N.Y. Sept. 10, 2014) (dismissing FTCA claim with

prejudice because it was time-barred). Pro se Plaintiff has not responded to Defendants’ motions

to dismiss or has otherwise addressed arguments regarding exhaustion of administrative remedies

or untimeliness (or potential equitable tolling). Pro se Plaintiff has failed to properly raise the

FTCA claims alleged in the SAC by not exhausting his administrative remedies, authorizing the

Court to dismiss pro se Plaintiff’s tort claims for want of subject matter jurisdiction. Foster v. Fed.

Emergency Mgmt. Agency, 128 F. Supp. 3d 717, 728 (E.D.N.Y. 2015) (“Failure to comply with

[exhaustion] results in dismissal of the suit.”). As a result, pro se Plaintiff’s FTCA claims are

dismissed with prejudice.

CONCLUSION

For the foregoing reasons, the Court GRANTS Supervisory Defendants’ (Otisville Warden

B.Von Blackensee, Captain Matt Whinery, Executive Assistant/Camp Administrator Chris Entzel,

Chaplain Avrohom Richter, and Associate Warden J.L. Maldonado) Motion to Dismiss in its

entirety, and GRANTS IN PART and DENIES IN PART Defendant Rezak’s Motion to Dismiss.

Specifically, the Court dismisses, without prejudice, pro se Plaintiff’s claims against

Supervisory Defendants under Bivens (Claims I-III) and the Religious Freedom Restoration Act

(“RFRA”) (Claim V). Pro se Plaintiff’s claims against the United States (Counts VI–X) are

dismissed with prejudice. Plaintiff’s claims under 42 U.S.C. § 1985(3) (Claim IV) against

Supervisory Defendants and Defendant Rezak are dismissed with prejudice. Further, the Court

dismisses, without prejudice, claims against Defendant Rezak under Bivens (Claims I-III).

However, pro se Plaintiff’s RFRA claim (Claim V) against Defendant Resak survives. Finally, pro

se Plaintiff’s request to add Nicole Gulliver as a new defendant is denied.

Pro se Plaintiff is granted leave to file a Third Amended Complaint. Pro se Plaintiff will

have until March 21, 2025 to do so, consistent with this order. Pro se Plaintiff is advised that the

Third Amended Complaint will replace, not supplement, the Second Amended Complaint, and so

any claims they wish to pursue must be included in, or attached to, the Third Amended Complaint.

Defendants are directed to answer or otherwise respond to the Third Amended Complaint by April

11, 2025, and the parties are directed to complete and file a Case Management Plan and Scheduling

Order (blank form attached) by May 2, 2025. If pro se Plaintiff fails to file a Third Amended

Complaint, Defendant Rezak is directed to answer the Second Amended Complaint by April 11,

2025, and the parties are directed to complete and file a Case Management Plan and Scheduling

Order (blank form attached) by May 2, 2025. If pro se Plaintiff fails to file a Third Amended

Complaint within the time allowed, those claims dismissed without prejudice by this order will be

deemed dismissed with prejudice. The Clerk of Court is respectfully directed to terminate the

motions at ECF No. 63 and 67 and to mail a copy of this Opinion to the pro se Plaintiff at the

address listed on ECF and to show service on the docket.

SO ORDERED.

SO ORDERED:

Dated: February 19, 2025 ms Lf = mai

White Plains, New York NELSON S, ROMAN

United States District Judge

25

UNITED STATES DISTRICT COURT Rev. Jan. 2012

SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------x

CIVIL CASE DISCOVERY PLAN

Plaintiff(s), AND SCHEDULING ORDER

- against -

Defendant(s). CV (NSR)

-------------------------------------------------------------x

This Civil Case Discovery Plan and Scheduling Order is adopted, after consultation with counsel,

pursuant to Fed. R. Civ. P. 16 and 26(f):

1. All parties [consent] [do not consent] to conducting all further proceedings before a

Magistrate Judge, including motions and trial, pursuant to 28 U.S.C. § 636(c). The

parties are free to withhold consent without adverse substantive consequences. (If all

parties consent, the remaining paragraphs of this form need not be completed.)

2. This case [is] [is not] to be tried to a jury.

3. Joinder of additional parties must be accomplished by _______________________.

4. Amended pleadings may be filed until _____________________.

5. Interrogatories shall be served no later than ___________________, and responses

7. Non-expert depositions shall be completed by ____________________________.

a. Unless counsel agree otherwise or the Court so orders, depositions shall not be

held until all parties have responded to any first requests for production of

documents.

b. Depositions shall proceed concurrently.

c. Whenever possible, unless counsel agree otherwise or the Court so orders, non-

party depositions shall follow party depositions.

8. Any further interrogatories, including expert interrogatories, shall be served no later than

_______________________.

9. Requests to Admit, if any, shall be served no later than ______________________.

10. Expert reports shall be served no later than ______________________.

11. Rebuttal expert reports shall be served no later than ______________________.

12. Expert depositions shall be completed by ______________________.

13. Additional provisions agreed upon by counsel are attached hereto and made a part hereof.

14. ALL DISCOVERY SHALL BE COMPLETED BY ______________________.

15. Any motions shall be filed in accordance with the Court’s Individual Practices.

16. This Civil Case Discovery Plan and Scheduling Order may not be changed without leave

of Court (or the assigned Magistrate Judge acting under a specific order of reference).

18. If, after entry of this Order, the parties consent to trial before a Magistrate Judge, the

Magistrate Judge will schedule a date certain for trial and will, if necessary, amend this

Order consistent therewith.

19. The next case management conference is scheduled for _____________________, at

____________. (The Court will set this date at the initial conference.)

SO ORDERED.

Dated: White Plains, New York

_______________________

Nelson S. Román, U.S. District Judge