# Grossman v. United States

> District Court, S.D. New York · February 19, 2025

URL: https://www.frixlaw.com/law-library/cases/10803702

## Case

- **Court:** District Court, S.D. New York
- **Decided:** February 19, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10803702. Public record. Not legal advice.