Neal v. Riley

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

DEMAR NEAL,

Plaintiff, 9:25-CV-0709

(GTS/MJK)

v.

CHAIRMAN ALLEN RILEY, et al.,

Defendants.

APPEARANCES: OF COUNSEL:

DEMAR NEAL

Plaintiff, pro se

Greene County Jail

80 Bridge Street

P.O. Box 231

Catskill, NY 12414

GLENN T. SUDDABY

United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Pro se plaintiff Demar Neal ("plaintiff") commenced this action, pursuant to 42 U.S.C. §

1983 ("Section 1983") and the Religious Land Use and Institutionalized Persons Act of 2000,

42 U.S.C. § 2000cc-1 et seq. ("RLUIPA") by filing a complaint. Dkt. No. 1 ("Compl.").

Plaintiff, who is presently incarcerated at Greene County Jail, has paid the statutory filing fee,

in full.

II. SUFFICIENCY OF THE COMPLAINT

A. Governing Legal Standard

Under 28 U.S.C. § 1915A, a court must review any "complaint in a civil action in which

a prisoner seeks redress from a governmental entity or officer or employee of a governmental

entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the

complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief

may be granted; or . . . seeks monetary relief from a defendant who is immune from such

relief." 28 U.S.C. § 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per

curiam) (noting that Section 1915A applies to all actions brought by prisoners against

government officials even when plaintiff paid the filing fee); Abbas v. Dixon, 480 F.3d 636,

639 (2d Cir. 2007) (stating that both sections 1915 and 1915A are available to evaluate

prisoner pro se complaints). The term "prisoner" includes pretrial detainees. 28 U.S.C. §

1915A(c) (2006).

Additionally, when reviewing a complaint, the Court may also look to the Federal Rules

of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading

which sets forth a claim for relief shall contain, inter alia, "a short and plain statement of the

claim showing that the pleader is entitled to relief." See Fed. R. Civ. P. 8(a)(2). The purpose

of Rule 8 "is to give fair notice of the claim being asserted so as to permit the adverse party

the opportunity to file a responsive answer, prepare an adequate defense and determine

whether the doctrine of res judicata is applicable." Hudson v. Artuz, No. 95 CIV. 4768, 1998

WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, No. 95-

CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y. June 23, 1995) (other citations omitted)).

In reviewing a pro se complaint, the court has a duty to show liberality toward pro se

litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should

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exercise "extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before

the adverse party has been served and both parties (but particularly the plaintiff) have had an

opportunity to respond." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal

citations omitted). Therefore, a court should not dismiss a complaint if the plaintiff has stated

"enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the

court should construe the factual allegations in the light most favorable to the plaintiff, "the

tenet that a court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions." Id. "Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550

U.S. at 555). Rule 8 "demands more than an unadorned, the 'defendant unlawfully harmed

me' accusation." Id.

B. Summary of the Complaint

The following facts are set forth as alleged by plaintiff in his complaint.

On June 14, 2024, plaintiff was in the custody of the Green County Sheriff at Greene

C.J. Compl. at 5. Plaintiff informed an officer that his religious preference was Santeria and

completed a request for "religious items." Id.

On June 21, 2024, plaintiff was informed that his request was not filed. Compl. at 5.

Plaintiff filed a grievance related to the issue. Id. On June 24, 2024, plaintiff was advised

that he would be permitted to have five beaded necklaces, a bracelet, a statue, cascarilla,

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and rose water. Id. at 5. On June 26, 2024, plaintiff received five necklaces and one

bracelet. Id. at 6.

In June 2024 and July 2024, plaintiff filed grievances related to religious items and

services for Santeria practitioners. Compl. at 6-9. Defendant Grievance Coordinator

Mandrake Vermilyea ("Vermilyea") denied the grievances citing "safety and security." Id.

Plaintiff appealed the decisions and defendant Lieutenant Dan Rubino ("Rubino"), the Chief

Administrative Officer, accepted the grievances, in part. Id. Plaintiff appealed Rubino's

decisions to defendants John/Jane Doe, the nine members of the New York State

Commission of Correction Citizens Policy and Complaint Review Council ("Doe

Defendants/Council"). Compl. at 6-9. Defendant Sheriff Peter J. Kusminsky ("Kusminsky")

was informed that "the Council sustains the action taken by the facility administration." Id.

In October 2024, plaintiff filed grievances complaining that accommodations were not

being made for Santeria services and claiming that defendant Rubino made "arbitrary,

capricious, and bias" decisions regarding religious items. Compl. at 10-11. Vermilyea denied

the grievances and plaintiff appealed to Rubino. Id. Rubino denied the appeals and plaintiff

appealed to Doe Defendants/Council. Id. Kusminsky was advised that the facility

determination was "sustained."

On October 30, 2024, plaintiff had a "manic psychotic mental breakdown." Compl. at

12. Plaintiff was sprayed with a chemical agent and moved to an isolation cell without an

opportunity to shower or decontaminate. Id. Plaintiff was transferred to segregated housing

and an order was issued directing staff to place plaintiff in mechanical restraints anytime he

was out of his unit. Id. at 13-14.

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On October 31, 2024, plaintiff received misbehavior reports charging him with assault,

disorderly conduct, disobeying orders, and spitting. Compl. at 15. Plaintiff filed a grievance

claiming he did not receive a disciplinary hearing in a timely manner. Id. Plaintiff's grievance

was denied as untimely. Id. Plaintiff was advised that he was "not Ad Seg and staff had 15

business days to render hearing." Id. Plaintiff appealed the decision claiming that while he

was told he was "not Ad Seg," he was denied outside/fresh air and recreation for thirteen

days. Compl. at 15, 30. Vermilyea advised that the grievance would be "forwarded to

administration for further consideration" as the "issues fall outside the scope of his authority

to investigate." Id. at 15. The grievance was not addressed. Id. Defendant Superintendent

Raymond J. Shanley ("Shanely") Shanley "kept" plaintiff in a single occupancy living unit

without any review, renewal or assessment until February 2025. Compl. at 29.

From October 31, 2024 until November 27, 2024, Vermilyea, Rubino, and Shanley

"were in agree[ment]" that plaintiff should have "non-contact visits" with his family and that

plaintiff must be handcuffed during the entirety of the visit. Compl. at 28.

On November 3, 2024, plaintiff filed a grievance with defendant Correctional Officer

Justine Albin ("Albin") complaining of jaw pain due to an "excessive force" incident from "staff

[. . . ] slamming his face into a glass window while moving him from 14 cell to 06 cell."

Compl. at 13. On November 4, 2024, plaintiff filed a formal complaint accusing defendant

Shanley of excessive force. Compl. at 13. Shanley responded and advised that Rubino

investigated the complaint and found "insufficient evidence to confirm[.]" Id.

On November 12, 2024, plaintiff received notice of a disciplinary hearing. Compl. at

16. On November 15, 2025, the hearing commenced. Id. On November 21, 2024, after a

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disciplinary hearing, the hearing officer found plaintiff guilty of fighting, disorderly conduct,

disobeying an order, and spitting. Id. Plaintiff was sanctioned to 60 days loss of visitation

privileges and keep lock for 17 hours/day. Compl. at 16. Plaintiff appealed the determination

to Shanley. Id. Shanley denied the appeal. Id.

On November 25, 2024, plaintiff filed a grievance related to "non-contact visits" and

being restrained during visits. Compl. at 17. Vermilyea denied the grievance and plaintiff

appealed to Rubino. Id. Rubino denied the appeal and plaintiff appealed to Doe

Defendants/Council. Id. Kusminsky was informed that the facility decision was sustained.

Id.

In November 2024, January 2025, and February 2025, plaintiff filed grievances.

Compl. at 18-22. Vermilyea denied the grievances and plaintiff appealed to Rubino. Id.

Rubino denied the appeals and plaintiff appealed to Doe Defendants/Council. Id. Kusminsky

was informed that the grievances were denied. Id.

Construed liberally1, the complaint contains the following: (1) First Amendment claims

related to the grievance process; (2) First Amendment free exercise and RLUIPA claims; (3)

excessive force and condition-of-confinement claims; (4) Fourteenth Amendment due

process claims; (5) First Amendment retaliation claims; and (6) state law claims. See

generally Compl. Plaintiff seeks monetary damages relief and injunctive relief. See id. For a

1 The Court is mindful of the Second Circuit's instruction that a pleading by a pro se litigant must be construed

liberally and interpreted to raise the strongest arguments that it suggests. See, e.g., Sealed Plaintiff v. Sealed

Defendant, 537 F.3d 185, 191 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district

courts" that a pro se plaintiff's pleadings must be construed liberally); Phillips v. Girdich, 408 F.3d 124, 130 (2d

Cir. 2005) ("We leave it for the district court to determine what other claims, if any, [plaintiff] has raised. In so

doing, the court's imagination should be limited only by [plaintiff's] factual allegations, not by the legal claims set

out in his pleadings.").

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complete statement of plaintiff's claims and the facts he relies on in support of those claims,

reference is made to the complaint.

C. Analysis

Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 ("Section 1983"), which establishes

a cause of action for " 'the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498,

508 (1990)); see also Myers v. Wollowitz, No. 95-CV-0272, 1995 WL 236245, at *2 (N.D.N.Y.

Apr. 10, 1995) (McAvoy, C.J.) (finding that "[Section] 1983 is the vehicle by which individuals

may seek redress for alleged violations of their constitutional rights"). "Section 1983 itself

creates no substantive rights, [but] . . . only a procedure for redress for the deprivation of

rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993).

"Personal involvement of defendants in alleged constitutional deprivations is a

prerequisite to an award of damages under [Section] 1983." Wright v. Smith, 21 F.3d

496,501 (2d Cir. 1994). As the Supreme Court has noted, a defendant may only be held

accountable for his actions under Section 1983. See Iqbal, 556 U.S. at 683 ("[P]etitioners

cannot be held liable unless they themselves acted on account of a constitutionally protected

characteristic."). To prevail on a Section 1983 cause of action against an individual, a plaintiff

must show "a tangible connection between the acts of a defendant and the injuries suffered."

Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). This is true even for supervisory officials.

See Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) ("There is no special rule for

supervisor liability."). "[A] plaintiff must plead and prove 'that each Government-official

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defendant, [including supervisors,] through the official's own individual actions, has violated

the Constitution.' " Id. (quoting Iqbal, 556 U.S. at 676).

1. Rule 10

The complaint contains allegations related to individuals who are not identified in the

caption, or list of parties, as defendants. See Compl. at 5, 12, 14-16. Rule 10(a) of the

Federal Rules of Civil Procedure provides that, "the title of the complaint must name all the

parties." Fed. R. Civ. P. 10(a). A party not named in the caption of the complaint is not a

party to the action. Abbas v. U.S., No. 10-CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug.

1, 2014) (holding that the failure to name the individual defendants against whom the plaintiff

intends to assert claims makes it "infeasible for the Court to determine which of the individual

officers mentioned in the body of the complaint should be deemed to be defendants to which

claims").

Accordingly, plaintiff's allegations against any individual who is not named or identified

in the complaint or caption, as John Doe or otherwise, are dismissed for failure to state a

claim. See Whitley v. Krinser, No. 06-CV-0575, 2007 WL 2375814, at *1 (W.D.N.Y. Aug. 15,

2007); Robles v. Armstrong, No. 3:03-CV-1634, 2006 WL 752857, at *1 n.1 (D. Conn. Mar.

17, 2006) ("Because the John and Jane Does are not listed in the caption of the Complaint,

they are not defendants and the court does not consider claims against them.").

2. Constitutional Claims Related to Grievance Process

Inmates do not have a constitutional right to state grievance programs. See Shell v.

Brzeniak, 365 F.Supp.2d 362, 370 (W.D.N.Y. 2005) ("[I]nmate grievance programs created

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by state law are not required by the Constitution and consequently allegations that prison

officials violated those procedures does [sic] not give rise to a cognizable § 1983 claim.").

Moreover, inmates do not have a due process right to an investigation requested

through a grievance. See DeShaney v. Winnebego Soc. Servs., 489 U.S. 189, 196 (1989)

(The Due Process Clause "generally confers no affirmative right to governmental aid, even

where that aid may be necessary to secure life, liberty, or property interests of which the

government itself may not deprive the individual."); Pine v. Seally, No. 9:09-CV-1198

(DNH/ATB), 2011 WL 856426, at *9 (N.D.N.Y. Feb. 4, 2011) ("To the extent that plaintiffs

attempt to assert a separate constitutional claim of 'failure to investigate,' the law is . . . clear

that inmates do not enjoy a constitutional right to an investigation of any kind by government

officials.") (citing Bernstein v. New York, 591 F.Supp.2d 448, 460 (S.D.N.Y. 2008) (collecting

cases)); Torres v. Mazzurca, 246 F.Supp.2d 334, 341-42 (S.D.N.Y. 2003) (Inmates do not

have a due process right to a thorough investigation of grievances).

Accordingly, plaintiff's First Amendment claims related to the processing of his

grievances and complaints are dismissed without prejudice pursuant to 28 U.S.C. §

1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be

granted.

3. First Amendment – Free Exercise/RLUIPA

Plaintiff claims that Vermilyea, Rubino, Shanley, Doe Defendants/Council, and

Kusminsky violated his First Amendment rights and RLUIPIA because they denied him

personal religious items and Santeria services. See Compl. at 25-26.

The First Amendment to the United States Constitution guarantees the right to free

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exercise of religion. See U.S. Const. amend. I; Cutter v. Wilkinson, 544 U.S. 709, 719

(2005). As is true with regard to the First Amendment generally, the free exercise clause

applies to prison inmates, subject to appropriate limiting factors. See Ford v. McGinnis, 352

F.3d 582, 588 (2d Cir. 2003) (holding that "[p]risoners have long been understood to retain

some measure of the constitutional protection afforded by the First Amendment's Free

Exercise Clause" (citing Pell v. Procunier, 417 U.S. 817, 822 (1974)).

"In the prison context, however, 'the right to free exercise of religion' is balanced

against 'the interests of prison officials charged with complex duties arising from

administration of the penal system.' " Kravitz v. Purcell, No. 22-764, 2023 WL 8177114, at

*11 (2d Cir. Nov. 27, 2023) (quoting Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990)).

Thus, "an infringement of the free exercise of religion [may be] permissible . . . if it is

'reasonably related to legitimate penological interests.' " Id. (quoting Benjamin, 905 F.2d at

574). "[T]o assess a free exercise claim, a court must determine (1) whether the practice

asserted is religious in the person's scheme of beliefs, and whether the belief is sincerely

held; (2) whether the challenged practice of the prison officials infringes upon the religious

belief; and (3) whether the challenged practice of the prison officials furthers legitimate

penological objectives." Kravitz, 87 F.4th at 128 (alterations adopted) (quoting Farid v. Smith,

850 F.2d 917, 926 (2d Cir. 1988)).

RLUIPA provides that "[n]o government shall impose a substantial burden on the

religious exercise of a person residing in or confined to an institution . . . unless the

government demonstrates that imposition of the burden on that person (1) is in furtherance of

a compelling governmental interest; and (2) is the least restrictive means of furthering that

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compelling governmental interest." 42 U.S.C. § 2000cc–1(a) (2012). Courts analyzing

RLUIPA claims use the First Amendment "sincerely held religious beliefs" standard to

determine whether a plaintiff was engaged in a "religious" exercise. See Sioleski v. McGrain,

No. 10-CV-0665S, 2012 WL 32423, at *2, n. 2 (W.D.N.Y. Jan. 5, 2012) (citations omitted).

There is no cognizable private right of action under RLUIPA against state officers sued in

their individual capacities. Washington v. Gonyea, 731 F.3d 143, 144 (2d Cir. 2013). Only

injunctive relief is available under RLUIPA and RLUIPA does not authorize monetary

damages against state officers in their official capacities. Loccenitt v. City of New York, No.

12 Civ. 948, 2013 WL 1091313, at *6 (S.D.N.Y. March 15, 2013); see also Sossamon v.

Texas, 563 U.S. 277 (2011).

Here, plaintiff does not allege that Vermilyea, Rubino, Shanley, Doe

Defendants/Council, or Kusminsky personally denied him the right to possess religious items.

Rather, plaintiff describes interactions with officers who are not identified as defendants in the

complaint. Moreover, plaintiff claims he was "informed" by officers who are not identified as

defendants in the complaint, that his requests were denied. See Compl. at 5. The only

connection between defendants and the alleged First Amendment violations is plaintiff's

grievance related to the issue. In light of Tangreti, the Court finds that denying plaintiff's

grievances related to his religious rights is not enough to plausibly suggest that defendants

were personally involved in the alleged wrongdoing. See, e.g., Fabrizio v. Smith, No. 9:20-

CV-0011 (GTS/ML), 2021 WL 2211206, at *10 (N.D.N.Y. Mar. 10, 2021), report and

recommendation adopted by 2021 WL 2211023 (N.D.N.Y. June 1, 2021); Hendricks v.

Mallozzi, No. 9:20-CV-1035 (MAD/ML), 2022 WL 1129887, at *8 (N.D.N.Y. Jan. 14, 2022)

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(reasoning that the plaintiff's allegations against the defendants related solely to their denial

and/or affirmation of the denial were insufficient to plausibly suggest the personal

involvement), report and recommendation adopted, 2022 WL 856885 (N.D.N.Y. Mar. 23,

2022).

Accordingly, plaintiff's free exercise claims are dismissed pursuant to 28 U.S.C. §

1915A(b) for failure to state a claim upon which relief may be granted.

With respect to the RLUIPA claims, the complaint does not indicate whether

defendants are sued in their individual capacity, official capacity, or both. Accordingly,

plaintiff's RLUIPA claims are dismissed pursuant to 28 U.S.C. § 1915A(b) for failure to state a

claim upon which relief may be granted.

3. Excessive Force

As an initial matter, the Court notes that it is unclear whether plaintiff's excessive force

claims arise under the Eighth or Fourteenth Amendment because it is not clear from the

complaint whether plaintiff was confined at Greene C.J. as a convicted and sentenced

prisoner or as a pretrial detainee at the time of the alleged events. If plaintiff was convicted at

the time of the acts alleged in the complaint, he is protected from the imposition of cruel and

unusual punishment afforded by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97,

102 (1976). If plaintiff was confined as a pretrial detainee, his claims are governed by the

Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual

Punishments Clause of the Eighth Amendment. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d

Cir. 2017) (citation omitted).

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The Eighth Amendment protects prisoners from "cruel and unusual punishment" at the

hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991). The Eighth

Amendment's prohibition against cruel and unusual punishment encompasses the use of

excessive force against an inmate, who must prove two components: (1) subjectively, that

the defendant acted wantonly and in bad faith, and (2) objectively, that the defendant's

actions violated "contemporary standards of decency." Blyden v. Mancusi, 186 F.3d 252,

262-63 (2d Cir. 1999) (internal quotations omitted) (citing Hudson v. McMillian, 503 U.S. 1, 8

(1992)). The key inquiry into a claim of excessive force is "whether force was applied in a

good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause

harm." Hudson, 503 U.S. at 7 (citing Whitley v. Albers, 475 U.S. 312, 321-22 (1986)); see

also Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973); see also Wilkins v. Gaddy, 559

U.S. 34, 37 (2010) (per curiam) ("[t]he Supreme Court has emphasized that the nature of the

force applied is the core judicial inquiry in excessive force cases—not whether a certain

quantum of injury was sustained."). "To determine whether a defendant acted maliciously,

several factors should be examined including, 'the extent of the injury and the mental state of

the defendant, as well as the need for the application of force; the correlation between that

need and the amount of force used; the threat reasonably perceived by the defendants; and

any efforts made by the defendants to temper the severity of a forceful response.' " Scott v.

Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (quotation omitted).

Conversely, in the context of excessive force claims asserted by pretrial detainees, the

Supreme Court distinguished between Eighth and Fourteenth Amendment claims in holding

that a pretrial detainee alleging that an officer used excessive force against him in violation of

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the Fourteenth Amendment need not demonstrate that such officer was subjectively aware

that his use of force was unreasonable. See Kingsley v. Hendrickson, 576 U.S.389 (2015).

"[A] pretrial detainee must only show that the force purposely or knowingly used against him

was objectively unreasonable to prevail on an excessive force claim." Id. at 396-97. "[I]f the

use of force is deliberate – i.e., purposeful and knowing-the pretrial detainee's claim may

proceed." Id. at 396.

Courts consider a number of factors when determining objective reasonableness,

including:

the relationship between the need for the use of force and

the amount of force used; the extent of the plaintiff's injury;

any effort made by the officer to temper or to limit the amount

of force; the severity of the security problem at issue; the

threat reasonably perceived by the officer; and whether the

plaintiff was actively resisting.

Kingsley, 576 U.S. at 396.

Plaintiff alleges that Vermilyea, Rubino, and Shanley failed to respond to his grievance

related to being sprayed with a chemical agent and thus, violated his Eighth

Amendment/Fourteenth Amendment rights. See Compl. at 27. Plaintiff also asserts

excessive force claims against Shanley and Albin. See id. Under either standard, as

presently plead, the excessive force claims are subject to dismissal for the following reasons.

First, the allegations related to the use of force are too vague to suggest that plaintiff suffered

a constitutional violation. In a conclusory fashion, plaintiff claims he was sprayed with a

chemical agent and not permitted to "decontaminate" and that he was "slammed" into a glass

window during a cell move. See Compl. at 12-13. Plaintiff does not identify the location of

the incidents, or the time frame for the incidents, and does not describe the events that

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precipitated the incidents including whether plaintiff was given, and failed to respond to

officer's orders. Moreover importantly, plaintiff did not identify any individual or officer

involved in the incidents. The only connection between Vermilyea, Rubino, Shanley, and

Albin and the incident is plaintiff's grievances and complaints. As discussed supra,

defendants' failure to act on plaintiff's grievance or complaint cannot support an inference of

personal involvement.

Accordingly, plaintiff's excessive force claims are dismissed pursuant to 28 U.S.C. §

1915A(b) for failure to state a claim upon which relief may be granted.

4. Conditions of Confinement

While the Eighth Amendment " 'does not mandate comfortable prisons,' . . . neither

does it permit inhumane" treatment of those in confinement. Farmer v. Brennan, 511 U.S.

825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).

"To demonstrate that the conditions of his confinement constitute cruel and unusual

punishment, the plaintiff must satisfy both an objective test and a subjective test." Jolly v.

Coughlin, 76 F.3d 468,480 (2d Cir. 1996) (citation omitted). To satisfy the objective element,

"the plaintiff must demonstrate that the conditions of his confinement result 'in unquestioned

and serious deprivations of basic human needs.' " Id. (citation omitted). "[T]he inmate must

show that the conditions, either alone or in combination, pose an unreasonable risk of serious

damage to his health." Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (citation omitted).

With respect to the subjective element, plaintiff must "demonstrate that the defendants

imposed those conditions with 'deliberate indifference.' " Jolly, 76 F.3d at 480 (citation

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omitted). To constitute deliberate indifference, "[t]he prison official must know of, and

disregard, an excessive risk to inmate health or safety." Walker, 717 F.3d at 125.

"A pretrial detainee may establish a § 1983 claim for allegedly unconstitutional

conditions of confinement by showing that the officers acted with deliberate indifference to

the challenged conditions." Darnell, 849 F.3d at 29. Such a claim is typically analyzed

under a two-pronged standard. The objective prong of the deliberate indifference claim is the

same as a convicted prisoner under the Eighth Amendment. Id. at 30. To satisfy the

objective element, "the plaintiff must demonstrate that the conditions of his confinement result

'in unquestioned and serious deprivations of basic human needs.' " Jolly v. Coughlin, 76 F.3d

468, 480 (2d Cir. 1996) (citation omitted).

Second, the pretrial detainee must satisfy the "subjective prong" by showing that the

officer acted with deliberate indifference to the challenged conditions. Darnell, 849 F.3d at

29. As to the "mens rea" prong, a pretrial detainee must allege facts showing that "the

defendant-official acted intentionally to impose the alleged condition, or recklessly failed to

act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee

even though the defendant-official knew, or should have known, that the condition posed an

excessive risk to health or safety." Id. at 35; see Bruno v. City of Schenectady, 2018 WL

1357377 (2d Cir. 2018).

a. Visits

Plaintiff alleges that Vermilyea, Rubino, Shanley, the Doe Defendants/Council, and

Kusminsky "were in aggreance [sic]" that, for one month, plaintiff should have "non-contact"

visits with his family, while handcuffed. Compl. at 28. Plaintiff claims Vermilyea, Albin,

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Rubino, Doe Defendants/Council, and Kusminsky were personally involved because they

denied his grievance related to the issue and "failed to remedy these wrongs." Id. Initially,

the Court notes that, "the denial of contact visitation does not amount to the infliction of pain

at all, and that, even it did, it does not amount to the sort of wanton (and penologically

unjustified) infliction of pain[.]" Hughes v. Butt, No. 9:06-CV-1462, 2009 WL 3122952, at *14

(N.D.N.Y. Sept. 28, 2009) (citations omitted). Here, plaintiff does not allege that he is

prevented from having visitors. Additionally, as discussed supra, plaintiff cannot state a

constitutional claim based upon receipt and denial of grievances. Accordingly, plaintiff's

claims related to visitation are subject to dismissal. See Zimmerman v. Burge, No. 06-CV-

0176 (GLS/GHL), 2008 WL 850677, at *3 (N.D.N.Y. Mar. 28, 2008).

b. Fresh Air/Recreation

Plaintiff alleges that Shanley, Rubino, and Vermilyea violated his Eighth/Fourteenth

Amendment rights when they failed to address his grievance related to being denied

outside/fresh air and recreation for 13 days. Compl. at 30. Again, plaintiff's claims related to

his lack of fresh air or recreation are based solely upon defendants' decisions related to his

grievance on the issue. The complaint is totally devoid of facts suggesting that any named

defendant was personally involved in the decision to deny plaintiff fresh air or recreation for

thirteen days. For the reasons set forth supra, plaintiff's claims related to his lack of fresh

air/recreation are dismissed.

5. Due Process

Plaintiff claims Shanley confined plaintiff in a "single occupancy living unit," for

approximately four months, without any "review, renewals, or assessment." See Compl. at

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29. To successfully state a claim under Section 1983 for denial of due process arising out of

a disciplinary hearing, a plaintiff must show that he both (1) possessed an actual liberty

interest, and (2) was deprived of that interest without being afforded sufficient process. See

Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004); Tellier v. Fields, 280 F.3d 69, 79-80 (2d

Cir. 2000); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998); Bedoya v. Coughlin, 91

F.3d 349, 351-52 (2d Cir. 1996).

The Supreme Court has held that although states may still create liberty interests

protected by due process, with respect to convicted prisoners "these interests will be

generally limited to freedom from restraint which, while not exceeding the sentence in such

an unexpected manner as to give rise to protection by the Due Process Clause of its own

force . . ., nonetheless imposes atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 483-84 (1995). The

"atypicality" inquiry under Sandin is normally a question of law. Colon v. Howard, 215 F.3d

227, 230-31 (2d Cir. 2000); Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999). In making

that determination the Court must consider the specific circumstances of the confinement,

including both the duration and the conditions thereof. Id.

However, a pretrial detainee need not meet such a stringent standard because "[a]

detainee's interest in freedom from unjustified infliction of pain and injury is more

substantial[.]" Benjamin v. Fraser, 264 F.3d 175, 188 (2d Cir. 2001); see also Iqbal, 490 F.3d

at 146, rev'd on other grounds, Ashcroft v. Iqbal, 556 U.S. 662 (2009) ("Th[e Second Circuit]

has said that Sandin does not apply to pretrial detainees and that, accordingly, pretrial

detainees need not show that an imposed restraint imposes atypical and significant hardships

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to state deprivation of a liberty interest protected by procedural due process."). "Therefore, in

the case of a pretrial detainee, the court must determine whether the condition imposed on

the inmate was for a legitimate purpose or for the purpose of punishment." Myers v. Bucca,

No. 6:15-CV-553 (DNH/ATB), 2015 WL 13401929, at *9 (N.D.N.Y. Dec. 7, 2015) (citations

omitted), report and recommendation adopted by 2016 WL 165016 (N.D.N.Y. Jan. 14, 2016).

"Absent a showing of an expressed intent to punish, the determination whether a condition is

imposed for a legitimate purpose or for the purpose of punishment generally will turn on

whether an alternative purpose to which [the restriction] may rationally be connected is

assignable for it, and whether it appears excessive in relation to the alternative purpose

assigned [to it]." Benjamin, 264 F.3d at 188.

A convicted prisoner or pretrial detainee is entitled to the due process procedures

outlined in Wolff v. McDonnell, 418 U.S. 539 (1974). "These procedures include a

disciplinary hearing and written notice of the charges at least twenty-four hours in advance of

that hearing; the opportunity to present witnesses and documentary evidence before an

impartial hearing officer as long as doing so will not jeopardize prison safety and security; and

a written statement including evidence relied on by the hearing officer in reaching his or her

decisions and the reasons for the disciplinary action." Myers, 2015 WL 13401929, at *9

(citing Wolff, 418 U.S. at 564-66).

The Due Process Clause requires, among other things, that prison officials periodically

review whether an inmate who is confined in Administrative Segregation ("Ad Seg") continues

to pose a threat to the facility in order to ensure that Ad Seg is not used a pretext to keep the

inmate in the SHU indefinitely. Proctor v. LeClaire, 846 F.3d 597, 601 (2d Cir. 2017) (citing

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Hewitt v. Helms, 459 U.S. 460, 477 n.9, (1983)). The purpose of periodic reviews "is to

ensure that the state's institutional interest justifying the deprivation of the confined inmate's

liberty has not grown stale and that prison officials are not using Ad Seg as a pretext for

indefinite confinement of an inmate." Id. at 609 (quoting Hewitt, 459 U.S. at 476-77 & n.9).

The Supreme Court has noted that prison officials have "wide latitude in the procedures they

employ" when Ad Seg is used to "incapacitate an inmate who 'represents a security threat' "

and who remains a security risk throughout his confinement in Ad Seg. Id.

Here, while plaintiff claims he was confined to a single cell unit, the complaint contains

contradictory allegations related to whether his confinement constituted Ad Seg. Moreover,

the complaint is devoid of facts suggesting that plaintiff's confinement was atypical and

significant because the complaint lacks facts related to plaintiff's conditions of the segregated

confinement compared to ordinary prison conditions. Further, the individual who presided

over the disciplinary hearing is not identified as a defendant in this action. See Compl. at 16.

Accordingly, the complaint does not suggest that any named defendant confined plaintiff to a

single cell unit with an "express intent to punish." Because plaintiff has not sufficiently plead

an underlying due process violation, plaintiff attempts to impose liability upon Shanley based

upon his affirmation of the hearing officer's determination is also subject to dismissal. See

Hinton v. Prack, No. 9:12-CV-1844 (LEK/RFT), 2014 WL 4627120, at *17 (N.D.N.Y. Sept. 11,

2014).

Accordingly, plaintiff's due process claims related to his single cell confinement are

dismissed pursuant to 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may

be granted.

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6. Retaliation

Plaintiff claims that Shanley and Rubino "blocked contacts and phone numbers" as

"retaliatory acts due to the plaintiff's friends and family reaching out to individuals and legal

entities[.]" Compl. at 30-31.

To state a claim of retaliation under the First Amendment, an inmate must allege facts

plausibly suggesting "the following: '(1) that the speech or conduct at issue was protected, (2)

that the defendant took adverse action against the plaintiff, and (3) that there was a causal

connection between the protected speech and the adverse action.' " Gill v. Pidlypchak, 389

F.3d 379, 380 (2d Cir. 2004) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001),

overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). The

Second Circuit has stated that courts must approach prisoner retaliation claims "with

skepticism and particular care," since "virtually any adverse action taken against a prisoner

by a prison official — even those otherwise not rising to the level of a constitutional violation

— can be characterized as a constitutionally proscribed retaliatory act." Dawes, 239 F.3d at

491.

The Second Circuit has defined "adverse action objectively, as retaliatory conduct that

would deter a similarly situated individual of ordinary firmness from exercising constitutional

rights." Gill, 389 F.3d at 381 (cleaned up) (emphasis in original). The "objective test applies

even where a particular plaintiff was not himself subjectively deterred" from exercising his

rights. Id. "A plaintiff can establish a causal connection that suggests retaliation by showing

that protected activity was close in time to the adverse action." Espinal v. Goord, 558 F.3d

119, 129 (2d Cir. 2001). While there is no "bright line . . . defin[ing] the outer limits" of the

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"temporal relationship," courts in the Second Circuit have held that an adverse action taken

as much as eight months after the protected activity indicated a causal connection. Grant v.

Bethlehem Steel Corp., 622 F.2d 43, 45–46 (2d Cir. 1980); but see Hollander v. American

Cyanamid Co., 895 F.2d 80, 85–86 (2d Cir. 1990) (finding a lack of evidence that an adverse

action, taken three months after the plaintiff's protected activity, was in response to it).

Here, plaintiff's retaliation claims are wholly conclusory without any factual support.

Initially, the Court notes that plaintiff has failed to plead that he engaged in protected conduct.

Even assuming plaintiff's protected conduct stems from his family members reaching out to

"individuals" and "legal entities," the complaint lacks facts to plausibly suggest that Shanley

and/or Rubino was aware that his family "reached out" to unnamed individuals and

unidentified entities or how and why defendants would be motivated to retaliate as a result of

that contact. Moreover, plaintiff has not plead that he suffered an "adverse action" that was

causally related to any protected activity. To wit, plaintiff does not claim when, how, or for

how long his "contacts" were "blocked" and whether he was unable to reach his "contacts" in

any manner.

Simply put, plaintiff's retaliation claims are insufficiently plead to survive this Court's

sua sponte review. Accordingly, plaintiff's retaliation claims related to his single cell

confinement are dismissed pursuant to 28 U.S.C. § 1915A(b) for failure to state a claim upon

which relief may be granted.

7. Supervisory Liability

Plaintiff claims defendants Chairman Allen Riley ("Riley"), Commissioner Yolanda

Canty ("Canty"), Commissioner Elizabeth Gaynes ("Gaynes"), and Kusminsky were

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personally involved in constitutional violations because they failed to "adequately supervise

the subordinates[.]" Compl. at 26-27.

"Liability based solely [. . .] due to a failure to supervise, without more, constitutes

precisely the type of vicarious, respondeat superior liability that Iqbal and Tangreti eliminate."

Myers on behalf of Est. of Myers v. Davenport, No. 1:21-CV-0922 (LEK/CFH), 2022 WL

3017367, at *4 (N.D.N.Y. July 29, 2022) (citation omitted). In this case, the complaint is

devoid of any allegations which plausibly suggest that defendants directly participated in any

alleged constitutional violation or that defendants were present or otherwise involved in any

constitutional violation. In the absence of some tangible connection between defendants and

the alleged constitutional claims, the claims against defendants must be dismissed. See

O'Brien v. City of Syracuse, No. 5:22-CV-948 (MAD/TWD), 2023 WL 6066036, at *19

(N.D.N.Y. Sept. 18, 2023) (citing, inter alia, Robinson v. Graham, No. 20-CV-1610, 2021 WL

2358415, *3 (N.D.N.Y. June 9, 2021) (dismissing claim against supervisor for failure to train

and manage staff as "reminiscent of a 'supervisor liability' theory of liability for Section 1983

claims that is no longer available" after Tangreti), reconsideration denied, 2024 WL 4252052

(N.D.N.Y. Sept. 20, 2024)

8. State Law Claims

Plaintiff claims that defendants' policies violated the provisions of the HALT Act.

District courts have supplemental jurisdiction over all state law claims that are so related to

federal claims over which they exercise original jurisdiction that they form part of the same

case or controversy under Article III of the Constitution. 28 U.S.C. § 1367(a) (2000).

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The alleged violations of the HALT Act are parallel to plaintiff's federal claims for

deliberate indifference. Because plaintiff's federal claims for deliberate indifference are being

dismissed, the Court declines to exercise supplemental jurisdiction over the state law claims.

See 28 U.S.C. § 1367(c)(3); Valencia v. Sung M. Lee, 316 F.3d 299, 306 (2d Cir. 2003).

III. LEAVE TO AMEND

In light of his pro se status, the Court will afford plaintiff the opportunity to file an

amended complaint if he desires to proceed with this action. Any such amended complaint,

which shall supersede and replace in its entirety the previous complaint filed by plaintiff, must

contain a caption that clearly identifies, by name, each individual that plaintiff is suing in the

present lawsuit and must bear the case number assigned to this action. The body of

plaintiff's amended complaint must contain sequentially numbered paragraphs containing

only one act of misconduct per paragraph. Thus, if plaintiff claims that his civil and/or

constitutional rights were violated by more than one defendant, or on more than one

occasion, he should include a corresponding number of paragraphs in his amended

complaint for each such allegation, with each paragraph specifying (i) the alleged act of

misconduct; (ii) the date on which such misconduct occurred; (iii) the names of each and

every individual who participated in such misconduct; (iv) where appropriate, the location

where the alleged misconduct occurred; and, (v) the nexus between such misconduct and

plaintiff's civil and/or constitutional rights.

IV. CONCLUSION

WHEREFORE, it is hereby

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ORDERED that, if plaintiff wishes to proceed with this action, he must file an amended

complaint as set forth above within thirty (30) days from the date of the filing of this Decision

and Order; and it is further

ORDERED that, if plaintiff timely files an amended complaint, this matter be returned

to the Court for further review; and it is further

ORDERED that, if plaintiff fails to timely file an amended complaint as directed above,

the Clerk shall enter judgment indicating this action is DISMISSED without prejudice without

further order of this Court pursuant to 28 U.S.C. § 1915(e)(2)(B)and 28 U.S.C. § 1915A for

failure to state a claim upon which relief may be granted and for failure to comply with this

Decision and Order. In that event, the Clerk is directed to close this case; and it is further

ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on

plaintiff in accordance with the Local Rules of Practice.

Dated: August 14, 2025

U.S. District Judge

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