# Montalvo v. The State of New York

> District Court, N.D. New York · August 27, 2025

URL: https://www.frixlaw.com/law-library/cases/11128887

## Case

- **Court:** District Court, N.D. New York
- **Decided:** August 27, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11128887

## How later opinions describe it (automated extraction)

- stating that to establish deliberate indifference, a plaintiff “must show that the acts or omissions of [defendants] ‘evince[d] a conscious disregard of a substantial risk of serious harm’”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

AXEL MONTALVO,

Plaintiff,

v. 9:24-cv-00445 (AMN/MJK)

THE STATE OF NEW YORK et al.,

Defendants.

APPEARANCES: OF COUNSEL:

THE LAW OFFICE OF CHRISTOPHER H. FITZGERALD,
CHRISTOPHER FITZGERALD ESQ.
14 Wall Street – Suite 1603 PAUL STEWART-STAND, ESQ.
New York, New York 10005
Attorneys for Plaintiff

HON. LETITIA JAMES AIMEE COWAN, ESQ.
New York State Attorney General
Syracuse Regional Office
300 South State Street – Suite 300
Syracuse, New York 13202
Attorneys for Defendants
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On March 28, 2024, Plaintiff Axel Montalvo (“Plaintiff”) commenced this action pursuant
to 42 U.S.C. § 1983 (“Section 1983”), Title II of the Americans with Disabilities Act, 42 § 12101
et seq. (“ADA”), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq.
(“Rehabilitation Act”), asserting claims arising out of his eventual loss of vision in one eye while
incarcerated at Marcy Correctional Facility (“Marcy”) against Defendants the State of New York
(“New York State”), the New York State Department of Corrections and Community Supervision
(“DOCCS”), Anthony Annucci, physicians Carl Koenigsmann, John Morley, Carol Moores, John
T. Hammer, Paula Bozer, David S. Dinello, Shehab Zaki, and Robert Druger (collectively,
“Defendants”), as well as numerous unidentified defendants. Dkt. No. 1. Plaintiff filed an
amended complaint on June 28, 2024. Dkt. No. 8 (“Amended Complaint”).
Presently before the Court are Defendants’ motions to dismiss the Amended Complaint

pursuant to Rule 12 of the Federal Rules of Civil Procedure (“Rule 12”). Dkt. Nos. 15, 24
(together, the “Motion”). Plaintiff partially opposes the Motion, Dkt. Nos. 26-27, and Defendants
filed reply papers in further support, Dkt. Nos. 30-31. For the reasons set forth below, the Motion
is granted in part and denied in part.
II. BACKGROUND
Unless otherwise noted, the following facts are drawn from the Amended Complaint, its
attachments, or materials it incorporates by reference, and are assumed to be true for purposes of
ruling on the Motion, see Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v.
N.Y.C. Dep’t of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam), or are otherwise matters of

public record, see Williams v. N.Y.C. Hous. Auth., 816 F. App’x 532, 534 (2d Cir. 2020).
A. The Parties and their Roles
Plaintiff was born in 1979 and was incarcerated at Marcy, a medium security prison in
Oneida County, from July 5, 2018 until his release on September 29, 2022. Dkt. No. 8 at ¶¶ 6, 10,
34, 69.
DOCCS is the agency that operates and maintains New York State’s prisons and parole
system. Id. at ¶ 9. Defendant Annucci was the commissioner of DOCCS at all relevant times. Id.
at ¶ 11.
Defendant Koenigsmann served as the Chief Medical Officer (“CMO”) of DOCCS “until
late-2018[;]” Defendant Morley then served as CMO “[f]rom late-2018, up until mid-2020[;]”
Defendant CMO Doe served as CMO “from mid-2020 through July 2020[;]” and Defendant
Moores began serving as CMO two years later “in July 2022.” Id. at ¶¶ 12-15. Plaintiff alleges
that the CMO “is the ultimate arbiter of medical policy for DOCCS” and “normally does not treat
individual patients.” Id. at ¶¶ 79, 81.

At all relevant times, based on information and belief, Plaintiff alleges that Defendants
Hammer, Bozer, and Dinello each served as a Regional Medical Director (“RMD”). Id. at ¶¶ 16-
18. Plaintiff further alleges that DOCCS is organized around five geographic hubs, that each hub
is “a group of correctional facilities within a region,” and that an RMD is responsible for
overseeing medical care in each hub. Id. at ¶ 86. Plaintiff alleges that, like the CMO, RMDs “were
also responsible for crafting policies and procedures for medical treatment of patients in DOCCS’
custody, including overseeing primary care guidelines for treatment.” Id. at ¶ 84.
Plaintiff alleges that DOCCS employed, at all relevant times, Defendant Zaki as a
physician at Marcy, id. at ¶ 19; Defendant Druger as an ophthalmologist at Walsh Medical Unit at

Mohawk Correctional Facility (“Mohawk”), id. at ¶ 20; and also employed various unidentified
defendants as medical professionals, id. at ¶¶ 21-32.
Plaintiff alleges that medical professionals like Defendant Zaki (“Facility Medical
Providers”) are “directly responsible for the healthcare of prisoners in the custody of DOCCS,” id.
at ¶ 88, and “are directly responsible for examining patients during sick cal[l] and scheduled
examinations. . . . [and] respond[ing] to the medical complaints of patients regarding chronic pain,
neurological, and other health issues,” id. at ¶ 89.
Plaintiff further alleges that Facility Medical Providers “are directly responsible for
submit[ting] referrals for patients to outside consultants and specialists,” like Defendant Druger
(“Specialists”), when the Facility Medical Provider is “not skilled or experienced enough to
diagnose or treat specific conditions.” Id. at ¶ 98; see also id. at ¶ 90 (alleging the Facility Medical
Providers “are directly responsible for referring patients out for [S]pecialist diagnostic testing”).
According to Plaintiff, the basic referral process is that a Facility Medical Provider submits
a request which is reviewed (and approved or denied) by an outside “quality control” vendor for

DOCCS. Id. at ¶¶ 100-101. The vendor allegedly “provide[s] utilization review of medical
services received by incarcerated individuals to determine if the services provided were within the
standard guidelines for care.” Id. at ¶ 102. If the vendor denies the referral request, an RMD can
override the denial. Id. at ¶ 101. If the vendor approves the referral request, the Specialist conducts
the appointment and creates a report with his or her findings and recommendations. Id. at ¶¶ 103-
04. The Facility Medical Provider then “personally review[s]” the report to, inter alia, decide
whether to prescribe any medication recommended by the Specialist. Id. at ¶¶ 104-09. Plaintiff
alleges that Specialists “have no ability to directly ensure prescriptions to DOCCS’ patients[;] they
can only make recommendations to” Facility Medical Providers “through their reports.” Id. at

¶ 108.
Plaintiff sues various Defendants in both their individual and official capacities. Id. at 1.1
B. Plaintiff’s Factual Allegations
When Plaintiff arrived at Marcy in July 2018, his “only diagnosed health issues were
hypertension and asthma.” Id. at ¶ 34. Plaintiff alleges that on or around November 1, 2018,
during a routine checkup for eyeglasses, a non-party optometrist informed him that the pressure in
his left eye was “extremely high” and “required emergency surgery to reduce.” Id. at ¶ 35.

1 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic
filing system, and not the documents’ internal pagination.
Plaintiff suggests that this optometrist diagnosed him with glaucoma. Id. at ¶¶ 36, 42. The
optometrist also prescribed two medications, Latanoprost and Timolol, “to control and lower the
pressure within both” of Plaintiff’s eyes. Id. at ¶ 35.
Plaintiff understood that he was to administer both medications himself and not miss a
dose. Id. at ¶ 37. Plaintiff was able to pick up the prescriptions himself from the prison pharmacy,

as they were apparently classified by DOCCS as “self-carry” medications. Id. at ¶ 38. Plaintiff
states that his prescriptions required him “upon waking up, to apply drops to each eye every fifteen
minutes for the first two hours of the day and then once at night before going to sleep.” Id. at ¶ 39.
Plaintiff further alleges that these two medications were included in the DOCCS formulary book
at all relevant times, and thus could be prescribed “without approval from an administrator.” Id.
at ¶¶ 92-96.
On May 15, 2019, Defendant Zaki referred Plaintiff to an eye Specialist. Id. at ¶ 40.
Plaintiff was transported to Mohawk on or around November 12, 2019, where Defendant Druger
evaluated Plaintiff’s eyes and “confirmed” Plaintiff’s glaucoma diagnosis. Id. at ¶¶ 41-42.

Defendant Druger noted that the glaucoma was “stable,” and requested a follow-up appointment
within six months for further evaluation. Id. at ¶¶ 42-43. Defendant Druger “renewed” Plaintiff’s
prescriptions for Latanoprost and Timolol. Id. at ¶ 45. Plaintiff alleges that Defendant Druger
also told him “that the prior dosages prescribed were incorrect and that Plaintiff required surgery
at his next visit to stop fluid from building up inside his left eye.” Id. at ¶ 46. Following this visit,
Plaintiff alleges that he was seen by non-party optometrists at Mohawk several times, but surgery
was never scheduled or performed. Id. at ¶ 47.
In May 2020, Plaintiff alleges that he stopped receiving his prescription for one of this two
medications. Id. at ¶ 49. He alleges on information and belief that this prescription “was modified
without explanation from, evaluation by, or consultation with, a physician.” Id. at ¶ 50. Plaintiff
alleges that from May 2020 through April 23, 2021, his glaucoma was not monitored by a
physician or an optometrist. Id. at ¶¶ 51-52. Plaintiff further alleges that he “frequently submitted
medical slips requesting a medical visit due to discomfort, pain[,] and declining vision in his left
eye.” Id. at ¶ 53.

On or about April 22, 2021, Plaintiff filled out a sick call slip after he lost vision in his left
eye. Id. at ¶ 54. The next morning, Plaintiff still could not see out of his left eye. Id. at ¶ 55. He
was seen by a non-party nurse in Marcy’s infirmary, who put in a request for him to see a physician
“immediately.” Id.
Several days later, on April 26, 2021, Defendant Zaki “finally” evaluated Plaintiff. Id. at
¶ 56. Defendant Zaki apparently noted that Plaintiff had “Glaucoma with Optic Atrophy in his left
eye,” that Plaintiff was originally scheduled to follow up with the glaucoma clinic in May 2020,
that Plaintiff complained that his vision “has gotten worse-especially that of his left eye,” and that
Plaintiff needed to be scheduled for further evaluation at a glaucoma clinic. Id. at ¶ 57. Defendant

Zaki’s referral for Specialist care noted that the request was “Routine.” Id. at ¶ 58.
On April 29, 2021, a non-party nurse working for DOCCS’ quality control vendor
“delayed” Defendant Zaki’s referral request. Id. at ¶ 59. The nurse noted “Inappropriate Referral,”
“required additional information before the referral request could be approved,” and requested
“[p]lease change to GLA ‘Initial’ D/T >1 Yr. Since Last seen by GLA.” Id.
On July 12, 2021, Plaintiff was “finally” taken to Upstate Medical Center in Syracuse
(“Upstate”). Id. at ¶ 60. Plaintiff alleges that he “was told during this appointment that the optical
nerve damage in his left eye was damaged beyond repair.” Id. at ¶ 61. The non-party
ophthalmologist who evaluated Plaintiff determined that Plaintiff had pressure in his left eye and
was developing glaucoma in his right eye. Id. at ¶ 62. A procedure was scheduled and Plaintiff
received prescriptions for both medications again. Id. at ¶¶ 63-64.
On August 13, 2021, Plaintiff was seen by a non-party physician at Upstate. Id. at ¶ 65.
This physician diagnosed Plaintiff’s left eye condition as “‘severe stage’ ocular trauma as a result
of glaucoma.” Id. A second non-party physician performed a procedure to lower the pressure in

Plaintiff’s eyes. Id. Until this procedure, Plaintiff alleges that he “suffered extreme discomfort,
pain, and headaches as a result of the dangerously high pressure in his eyes caused by his chronic
glaucoma condition.” Id. at ¶ 66. And since losing vision in his left eye, Plaintiff alleges that “he
misjudges entrances to rooms and stairs, walks into walls and people[,]” “spills liquids and food[,]”
and “is unable to return to work in construction.” Id. at ¶ 67.
Following the procedure, Plaintiff “remained in DOCCS custody and continued to receive
treatment for glaucoma of both eyes until his release on September 29, 2022.” Id. at ¶ 69.
Plaintiff alleges, on information and belief, that he was eligible for parole in January 2022
“if he successfully participated in an early-parole eligible DOCCS Program.” Id. at ¶ 70. Plaintiff

alleges that he “was made ineligible” for this program “due to his chronic eye condition and the
resulting pain, discomfort[,] and the required self-administration of prescription medications for
treatment of the condition.” Id. at ¶ 71. Plaintiff alleges that because he did not complete any
early parole program, he served “all but two days of his full sentence.” Id. at ¶¶ 72-73.
C. Plaintiff’s Legal Claims
Based on Plaintiff’s factual allegations, he asserts four claims in the Amended Complaint:
(i) under Section 1983, that Defendants Zaki, Druger, Hammer, Bozer, and Dinello were
deliberately indifferent to Plaintiff’s medical needs, in violation of the Eighth Amendment’s
prohibition against cruel and unusual punishment, id. at ¶¶ 110-19; (ii) under Section 1983, that
Defendants Annucci, Koenigsmann, Morley, CMO Doe, Moores, Hammer, Bozer, and Dinello
violated Plaintiff’s Fourteenth Amendment right to substantive due process, id. at ¶¶ 120-25; (iii)
under Title II of the ADA, that New York State and DOCCS discriminated against Plaintiff, id. at
¶¶ 126-139; and (iv) under the Rehabilitation Act, that New York State and DOCCS discriminated
against Plaintiff, id. at ¶¶ 140-45.

III. STANDARD OF REVIEW2
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal
sufficiency of a party’s claim for relief. Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007). In
considering legal sufficiency, a court must accept as true all well-pled facts in the complaint and
draw all reasonable inferences in the pleader’s favor. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.,
493 F.3d 87, 98 (2d Cir. 2007). This presumption, however, does not extend to legal conclusions.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
To survive a motion to dismiss, a party need only plead “a short and plain statement of the
claim,” Fed. R. Civ. P. 8(a)(2), with sufficient factual “heft to sho[w] that the pleader is entitled to

relief,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (alteration in original) (quotation
omitted). Under this standard, a pleading’s “[f]actual allegations must be enough to raise a right
to relief above the speculative level,” id. at 555 (citation omitted), and present claims that are
“plausible on [their] face,” id. at 570. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678 (citation omitted). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and

2 As detailed below, the Court need only address Defendants’ arguments under Rule 12(b)(6) to
resolve the Motion.
plausibility of ‘entitlement to relief.’’” Id. (quoting Twombly, 550 U.S. at 557). Ultimately, “when
the allegations in a complaint, however true, could not raise a claim of entitlement to relief,”
Twombly, 550 U.S. at 558, or where a plaintiff has “not nudged [his or her] claims across the line
from conceivable to plausible, [the] complaint must be dismissed,” id. at 570.
IV. DISCUSSION

In combination, Defendants’ Motion seeks to dismiss all of Plaintiff’s claims. Dkt. Nos.
15, 24, 30-31. Plaintiff largely opposes in response, but “agrees to dismiss the official capacity
claims against any of the [D]efendants for claims under §1983.” Dkt. No. 26 at 11; Dkt. No. 27 at
11. Accordingly, the Motion is granted as to these claims. See, e.g., Mallet v. N.Y. State Dep’t of
Corr. & Cmty. Supervision, 126 F.4th 125, 138 (2d Cir. 2025) (“[A] Section 1983 claim for
damages against a state official can only be asserted against that official in his or her individual
capacity.”) (alterations in original) (quoting Al-Jundi v. Est. of Rockefeller, 885 F.2d 1060, 1065
(2d Cir. 1989)). The Court addresses the parties’ competing arguments regarding Plaintiff’s
remaining claims below.

A. Eighth Amendment Deliberate Medical Indifference
“An Eighth Amendment claim arising out of inadequate medical care requires a
demonstration of ‘deliberate indifference to [a prisoner’s] serious medical needs.’” Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (alteration in original) (quoting Estelle v. Gamble, 429
U.S. 97, 104 (1976)). To prevail on such a claim, “a plaintiff must show: (1) the inadequacies in
his medical care were objectively serious (the objective test); and (2) the defendant acted with
deliberate indifference to his serious medical needs (the subjective test).” Collins v. Figura, No.
23-109, 2024 WL 1739084, at *1 (2d Cir. Apr. 23, 2024) (summary order) (citing Brock v. Wright,
315 F.3d 158, 162 (2d Cir. 2003)). “The term ‘deliberate indifference describes a state of mind
more blameworthy than negligence,’ but it is a standard that ‘is satisfied by something less than
acts or omissions for the very purpose of causing harm or with knowledge that harm will result.’”
Lara-Grimaldi v. Cnty. of Putnam, 132 F.4th 614, 631 (2d Cir. 2025) (first quoting Farmer v.
Brennan, 511 U.S. 825, 835 (1994); and then citing Weyant v. Okst, 101 F.3d 845, 857 (2d Cir.
1996)). “This means ‘that the charged official [must] act or fail to act while actually aware of a

substantial risk that serious inmate harm will result.’” Spavone v. N.Y. State Dep’t of Corr. Servs.,
719 F.3d 127, 138 (2d Cir. 2013) (alterations in original) (quoting Salahuddin v. Goord, 467 F.3d
263, 279 (2d Cir. 2006)).
However, “[i]t is well-established that mere disagreement over the proper treatment does
not create a constitutional claim.” Wright v. Martin, No. 23-7762, 2025 WL 1091221, at *3 (2d
Cir. Apr. 8, 2025) (summary order) (first quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.
1998); and then citing Estelle, 429 U.S. at 107). And “[b]ecause the Eighth Amendment is not a
vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse
in prison medical care will rise to the level of a constitutional violation.” Smith v. Carpenter, 316

F.3d 178, 184 (2d Cir. 2003) (citing, inter alia, Estelle, 429 U.S. at 105-06).
i. Defendant Zaki
With respect to Defendant Zaki, Defendants do not contest that the allegations in the
Amended Complaint are sufficient to satisfy the objective prong of an Eighth Amendment
deliberate medical indifference claim. Defendants instead argue that Plaintiff has not sufficiently
alleged the subjective prong. Dkt. No. 15-1 at 16-17; Dkt. No. 30 at 8.
This argument is unpersuasive. Accepting Plaintiff’s well pled allegations as true and
drawing all reasonable inferences in Plaintiff’s favor at this stage, Defendant Zaki was a Facility
Medical Provider at Marcy. Dkt. No. 8 at ¶¶ 19, 87. In that role, he was “directly responsible” for
Plaintiff’s healthcare, including examining Plaintiff, addressing his medical complaints,
prescribing him medication, referring him to Specialists outside Marcy, and reviewing and
following up on the resulting reports and recommendations. Id. at ¶¶ 88-91, 98-100, 103-09.
Defendant Zaki referred Plaintiff to a Specialist who, in November 2019, recommended
certain medical treatment as a result of Plaintiff’s glaucoma diagnosis. Id. at ¶¶ 40-46. Plaintiff

lost vision in his left eye in April 2021. Id. at ¶¶ 54-55. For most of the time between those two
events, Plaintiff alleges that he did not fully receive the recommended medical treatment and had
no physician monitoring his glaucoma, despite “frequently submit[ing] medical slips requesting a
medical visit due to discomfort, pain[,] and declining vision in his left eye.” Id. at ¶¶ 48-53. These
allegations are sufficient “to make ‘a showing that the official was subjectively aware of the risk.’”
Lara-Grimaldi, 132 F.4th at 631 (quoting Farmer, 511 U.S. at 829); see also Spavone, 719 F.3d
at 138 (“[A]wareness may be proven ‘from the very fact that the risk was obvious.’”) (quoting
Farmer, 511 U.S. at 842).
Even after Plaintiff reported his loss of vision in April 2021, Defendant Zaki allegedly did

not see him for several days and then generated a “Routine” referral that was flagged as
“Inappropriate” by DOCCS’ quality control vendor. Dkt. No. 8 at ¶¶ 54-59. Plaintiff was not
evaluated by a Specialist until July 12, 2021, when he was informed “that the optical nerve damage
in his left eye was damaged beyond repair.” Id. at ¶¶ 60-61. On August 13, 2021, Plaintiff was
diagnosed with “‘severe stage’ ocular trauma as a result of glaucoma” in his left eye, and
underwent a procedure for both his eyes. Id. at ¶ 65. It thus appears that even after Plaintiff
reported his loss of vision, Defendant Zaki’s “Routine” referral, which was flagged as
“Inappropriate,” may have delayed for several more months the diagnosis and eventual treatment
of Plaintiff’s worsened medical condition. See, e.g., Mallet, 126 F.4th at 132 (stating that to
establish deliberate indifference, a plaintiff “must show that the acts or omissions of [defendants]
‘evince[d] a conscious disregard of a substantial risk of serious harm’”) (second alteration in
original) (first quoting Darby v. Greenman, 14 F.4th 124, 128 (2d Cir. 2021); and then citing
Farmer, 511 U.S. at 835).
For all of these reasons, the Court denies the Motion as to Plaintiff’s Eighth Amendment

claim against Defendant Zaki.
ii. Defendant Druger
As with Defendant Zaki, Defendants argue that Plaintiff’s Eighth Amendment claim
against Defendant Druger fails at the subjective prong. Dkt. No. 24-3 at 15-16; Dkt. No. 31 at 7-
8. Defendants further argue that any such claim against Defendant Druger is time barred. Dkt.
No. 24-3 at 16-17; Dkt. No. 31 at 8-10. Given Plaintiff’s significantly different allegations against
Defender Druger, the Court agrees with both arguments.
The Amended Complaint alleges that, at all relevant times, Defendant Druger worked at
Mohawk, an entirely separate prison from Marcy, where Plaintiff was housed and Defendant Zaki

worked. Dkt. No. 8 at ¶¶ 6, 19, 20. On or around November 12, 2019, as a result of a referral
from Defendant Zaki to see an eye Specialist, Plaintiff was transported from Marcy to Mohawk.
Id. at ¶¶ 40-41. At Mohawk, Defendant Druger examined Plaintiff, “confirmed” Plaintiff’s
glaucoma diagnosis, determined that his glaucoma was “stable” at that time, “renewed” Plaintiff’s
prescriptions, “requested” a follow-up appointment within six months, and told Plaintiff that he
would require surgery at that next visit. Id. at ¶¶ 42-46. The Amended Complaint does not allege
that Defendant Druger had any subsequent involvement in Plaintiff’s medical care or knowledge
of Plaintiff’s medical needs, as Defendants correctly note.3 Dkt. No. 24-3 at 15-16. In short,
Plaintiff does not allege that Defendant Druger “failed to provide adequate treatment because [he]
consciously disregarded a substantial risk to [Plaintiff’s] health and safety.” Mallet, 126 F.4th at
132.
To the extent that Defendant Druger’s alleged conduct could constitute deliberate medical

indifference, the Court agrees with Defendants that any such claim is time-barred. Dkt. No. 24-3
at 16-17. Plaintiff alleges that Defendant Druger informed him in November 2019 that he needed
certain medical treatment. Dkt. No. 8 at ¶¶ 41-46. No later than May 2020, Plaintiff was aware
that he was not receiving such treatment and had “discomfort, pain and declining vision in his left
eye” as a result. Id. at ¶¶ 45, 49, 53. To the extent that Plaintiff has an Eighth Amendment
deliberate indifference claim against Dr. Druger, it thus accrued no later than May 31, 2020.
Mallet, 126 F.4th at 132 (stating that an Eighth Amendment deliberate indifference claim accrues
when a plaintiff “either knew or had reason to know both (1) that he suffered from an objectively
serious medical condition while he was incarcerated and (2) that Defendants[ ] failed to provide

adequate treatment because they consciously disregarded a substantial risk to his health and
safety”). Plaintiff did not bring this claim until March 28, 2024, or approximately three years and
ten months after it accrued. As a result, Plaintiff’s claim against Defendant Druger is time-barred.4

3 The Amended Complaint alleges that Plaintiff saw a number of non-party optometrists at
Mohawk after November 2019, but not Defendant Druger. Id. at ¶ 47. The Amended Complaint
also alleges that Defendant Druger is an ophthalmologist, not an optometrist. Id. at ¶ 41.
4 Even if the Court accepted Plaintiff’s position that the applicable statute of limitations was tolled
for approximately seven months of this nearly four-year period, Dkt. No. 27 at 21-22, Plaintiff’s
claim against Defendant Druger remains untimely by several months. See Burton v. Harder, No.
21-cv-1097, 2022 WL 846145, at *4-5 (N.D.N.Y. Mar. 22, 2022). And because Plaintiff alleges
no further conduct by Defendant Druger after November 2019, the continuing violation doctrine
is not applicable. Lucente, 980 F.3d at 309 (“The continuing violation doctrine, where applicable,
provides an ‘exception to the normal knew-or-should-have-known accrual date.’. . . . A claim will
be timely, however, only if the plaintiff ‘allege[s] . . . some non-time-barred acts’ contributing to
See, e.g., Lucente v. Cnty. of Suffolk, 980 F.3d 284, 308 (2d Cir. 2020) (“The statute of limitations
for § 1983 actions arising in New York is three years.”) (citations omitted).
For all of these reasons, the Court grants this portion of the Motion and dismisses Plaintiff’s
Eighth Amendment claim against Defendant Druger.
iii. Defendants Hammer, Bozer, and Dinello

Defendants argue that Plaintiff has not sufficiently pled the personal involvement of
Defendants Hammer, Bozer, and Dinello. Dkt. No. 15-1 at 12-16; Dkt. No. 24-3 at 10-15. Plaintiff
responds that these Defendants are “pled in the alternative,” as he does not know which RMD
supervised the hub in which Marcy and other prisons were located. Dkt. No. 27 at 17-19. Plaintiff
contends that “[i]t can be inferred that any RMD supervising the Oneida-Watertown Hub was
responsible for overseeing and reviewing Plaintiff’s medical care,” and states that he intends to
dismiss his claims against any RMD “who was not individually involved in Plaintiff’s medical
care[.]” Id. at 18. Plaintiff further argues that RMDs could approve “non-formulary prescriptions
and referrals to outside specialists” and, more generally, had supervisory authority. Id. at 15-16,

18-19; see also Dkt. No. 26 at 16.
To establish liability against an official under Section 1983, a plaintiff must allege that
official’s personal involvement in the alleged constitutional violation. See Victory v. Pataki, 814
F.3d 47, 67 (2d Cir. 2016). Moreover, the theory of respondeat superior is not available in a
Section 1983 action. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). Under Section
1983, “there is no special rule for supervisory liability. Instead, a plaintiff must plead and prove
‘that each Government-official defendant, through the official’s own individual actions, has

the violation.”) (second and third alterations in original) (quoting Harris v. City of New York, 186
F.3d 243, 248, 250 (2d Cir. 1999)). In contrast, and as detailed previously, Plaintiff does allege
continuing acts by Defendant Zaki. See supra Section IV.A.i.
violated the Constitution.’” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting
Iqbal, 556 U.S. at 676).
The Amended Complaint fails to allege the personal involvement of any RMD. Plaintiff’s
arguments to the contrary are unavailing.
First, the Amended Complaint does not allege that any RMD needed to approve Plaintiff’s

prescriptions. See generally Dkt. No. 8. Quite the opposite, as Plaintiff alleges that his two
prescriptions were, at all relevant times, formulary “medications available for doctors to prescribe
without approval from an administrator.” Id. at ¶¶ 92-96. Given that Plaintiff’s allegations do not
involve “non-formulary prescriptions,” Plaintiff’s argument that an RMD may have needed to
approve “non-formulary prescriptions” is beside the point. Dkt. No. 27 at 18. In any event, even
if an RMD did have to approve Plaintiff’s prescriptions, the Amended Complaint does not allege
that any RMD denied those prescriptions. See generally Dkt. No. 8.
Second, and as Defendants note, the Amended Complaint also does not allege that an RMD
needed to approve Plaintiff’s referrals to Specialists. Dkt. No. 30 at 6 n.2; see also Dkt. No. 8 at

¶¶ 16-18, 84-86. Instead, the Amended Complaint alleges that “DOCCS’ outside quality control
provider . . . reviews the specialty appointment request and approves or denies it. If denied an
RMD can override the denial.” Dkt. No. 8 at ¶ 101. And the Amended Complaint does not allege
that any referral was denied. Id. at ¶¶ 40-41, 58-60. Thus, Plaintiff’s argument that an RMD might
have been involved is unsupported by his allegations. Lama v. Meta Platforms, Inc., 732 F. Supp.
3d 214, 223 (N.D.N.Y. 2024).
Third, while the Amended Complaint does allege that RMDs have supervisory authority
over entire hubs, such general allegations are insufficient to allege supervisory liability for
purposes of Section 1983.5 Cf. Hernandez, 341 F.3d at 145 (“[Defendant] was responsible for
overseeing Sing Sing’s medical staff . . . but supervisor liability in a § 1983 action depends on a
showing of some personal responsibility, and cannot rest on respondeat superior.”) (citation
omitted). As the Second Circuit has made clear, a plaintiff must establish that a supervisor
“violated the Eighth Amendment by [his] own conduct, not by reason of [his] supervision of others

who committed the violation. [Plaintiff] must show that [the defendant] acted with deliberate
indifference—meaning that [the defendant] personally knew of and disregarded an excessive risk
to [plaintiff]’s health or safety.” Tangreti, 983 F.3d at 619 (citation and quotations omitted). The
Amended Complaint fails to do this, and Plaintiff’s argument that the personal involvement of an
RMD should simply be “inferred” is unconvincing. Dkt. No. 27 at 18; see also Tangreti, 983 F.3d
at 620 (“To hold a state official liable under § 1983, a plaintiff must plead and prove the elements
of the underlying constitutional violation directly against the official without relying on a special
test for supervisory liability. In the context of the Eighth Amendment, that requires a showing of
deliberate indifference on the part of the state-official[.]”).

For all of these reasons, the Court grants this portion of the Motion and dismisses Plaintiff’s
Eighth Amendment claim against Defendants Hammer, Bozer, and Dinello.
B. Fourteenth Amendment Substantive Due Process
“The Fourteenth Amendment guarantees ‘more than fair process’; it ‘cover[s] a substantive
sphere as well, barring certain government actions regardless of the fairness of the procedures used

5 To the extent that Plaintiff argues that RMDs also had policymaking authority, the Court agrees
with Defendants that the Amended Complaint is “devoid of any allegations” that connect a
resulting policy to Plaintiff’s alleged harm and, further, that Plaintiff fails to plausibly allege the
deliberate indifference of any policymaker. Dkt. No. 15-1 at 15-16; Dkt. No. 24-3 at 14; see also
Robinson v. Phillips, No. 22-cv-0945, 2023 WL 3170389, at *2 (N.D.N.Y. May 1, 2023).
to implement them.’” Hurd v. Fredenburgh, 984 F.3d 1075, 1087 (2d Cir. 2021) (alteration in
original) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998)).
Among the numerous grounds on which Defendants argue that Plaintiff’s Fourteenth
Amendment claim should be dismissed is the Amended Complaint’s failure to allege the personal
involvement of any named Defendant. Dkt. No. 15-1 at 17-22; Dkt. No. 24-3 at 17-21. Plaintiff

largely fails to respond to this argument for most of the named Defendants.6 Defendants are thus
correct that Plaintiff “offers no clarification as to how any of the above-named defendants were
personally involved in violating his substantive due process rights.” Dkt. No. 30 at 9; see also
Dkt. No. 31 at 11. Accordingly, the Court grants this portion of the Motion and dismisses
Plaintiff’s Fourteenth Amendment claim. Tangreti, 983 F.3d at 618.
C. ADA and Rehabilitation Act Claims
“When brought together, claims under these two statutes may be treated identically.”
Hilton v. Wright, 673 F.3d 120, 128 n.7 (2d Cir. 2012) (citing Henrietta D. v. Bloomberg, 331 F.3d
261, 272 (2d Cir. 2003)). To establish a prima facie case of discrimination under either the ADA

or the Rehabilitation Act, a plaintiff must “show that 1) he is a qualified individual with a disability;
2) DOCCS is an entity subject to the acts; and 3) he was denied the opportunity to participate in
or benefit from DOCCS’s services, programs, or activities or DOCCS otherwise discriminated
against him by reason of his disability.” Wright v. N.Y. State Dep’t of Corr., 831 F.3d 64, 72 (2d
Cir. 2016) (citing Henrietta D., 331 F.3d at 272). “A plaintiff alleging disability discrimination
‘can base [his] claim on any of three available theories: (1) intentional discrimination (disparate

6 Plaintiff’s cursory one-sentence contention as to the hypothetical personal involvement of
Defendants Hammer, Bozer, and Dinello, who are “pled in the alternative,” Dkt. No. 27 at 24,
remains unsupported by his allegations, see generally Dkt. No. 8, and fails for the reasons
previously detailed, see supra Section IV.A.iii.
treatment); (2) disparate impact; and (3) failure to make reasonable accommodation.’” Brooklyn
Ctr. for Psychotherapy, Inc. v. Phila. Indem. Ins. Co., 955 F.3d 305, 311 (2d Cir. 2020) (quoting
Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009)).
Defendants raise numerous reasons why Plaintiff’s ADA and Rehabilitation Act claims
against New York State and DOCCS should be dismissed. Dkt. No. 15-1 at 22-30; Dkt. No. 30 at

11-15. Because the parties appear to assume that Plaintiff’s allegations are sufficient to satisfy the
first and second prongs of the prima facie analysis, the Court need only address the third prong, as
that is where Plaintiff’s argument that he has adequately alleged disparate treatment and failure to
accommodate theories runs aground. Dkt. No. 26 at 22-30; see also Johnson v. N.Y. State Police,
659 F. Supp. 3d 237, 254 (N.D.N.Y. 2023) (“[I]f Plaintiff fails to allege an actionable ADA
violation at the outset, [ ] questions of sovereign immunity are irrelevant.”) (second alteration in
original) (quoting Colon v. N.Y. State Dep’t of Corr. & Cmty. Supervision, No. 15-cv-7432, 2017
WL 4157372, at *6 (S.D.N.Y. Sept. 15, 2017)).
As to disparate treatment, Plaintiff argues that New York State and DOCCS “fail[ed] to

provide him with consistent medical care.” Dkt. No. 26 at 23. But “[w]hen it comes to supporting
that assertion, Plaintiff relies on the same underlying allegations of inadequate care. [He] does not
point to discriminatory interactions, disparate treatment, or any other typical indicia of
discrimination.” Freudenberg v. Cnty. of Orange, No. 23-cv-847, 2024 WL 4307176, at *7
(S.D.N.Y. Sept. 25, 2024); see generally Dkt. No. 8. The Court thus agrees with Defendants that
the Amended Complaint “is devoid of any allegation that [Plaintiff] was treated less favorably than
others because of his disability.” Dkt. No. 30 at 12. “As a result, plaintiff’s claims are deficient
because he fails to allege facts which plausibly suggest that he was treated differently because of
his disability.” Sloley v. NYS DOCCS, No. 23-cv-1469, 2024 WL 1079886, at *11 (N.D.N.Y. Jan.
19, 2024) (collecting cases). And “courts routinely dismiss inmate ADA claims of inadequate
medical treatment lacking allegations that the inmate ‘was treated differently because of his or her
disability.’” Freudenberg, 2024 WL 4307176, at *7 (quoting Elbert v. N.Y. State Dep’t of Corr.
Servs., 751 F. Supp. 2d 590, 595 (S.D.N.Y. 2010)) (collecting cases); see also Tardif v. City of
New York, 991 F.3d 394, 405 (2d Cir. 2021) (“At its core, the issue here is not whether [plaintiff]

was denied medical services because she has a disability. Instead, her claim relates solely to
whether she received adequate medical treatment in [ ] custody for her disability, and such a claim
is not cognizable under the ADA. To hold otherwise would allow inmates to litigate in federal
court virtually every medical malpractice claim arising in a custodial setting under the auspices of
the ADA.”).
Plaintiff’s reasonable accommodation theory also fails at the third prong. “In examining
this claim, [courts] ask whether a plaintiff with disabilities ‘as a practical matter’ was denied
‘meaningful access’ to services, programs or activities to which he or she was ‘legally entitled.’”
Wright, 831 F.3d at 72 (quoting Henrietta D., 331 F.3d at 273).

Plaintiff argues that he did not participate in an early parole program as a result of his loss
of vision in one eye. Dkt. No. 26 at 23, 26. But Plaintiff does not allege that he was “legally
entitled” to participate in such a program. The Amended Complaint only alleges, upon information
and belief, that Plaintiff “was eligible for parole if he successfully participated in an early-parole
DOCCS Program.” Dkt. No. 8 at ¶ 70. As the authority upon which Plaintiff relies makes clear,
eligibility in this early parole program is statutorily restricted. Raymond v. N.Y. State Dep’t of
Corr. & Cmty. Supervision, 749 F. Supp. 3d 290, 298 (N.D.N.Y. 2024) (stating that eligibility
under the statute is limited “to individuals who: (1) are under age 50; (2) are serving a sentence for
a non-violent felony offense or certain burglary or robbery offenses; (3) are within three years of
eligibility for release to supervision, regardless of the length of their sentence; and (4) have not
served a previous sentence for violent felony offense”) (citing N.Y. Corr. Law § 865(1)).
Even if Plaintiff has sufficiently alleged that that he was “legally entitled” to participate in
the early parole program, he does not allege that DOCCS actually denied him access to the
program. See, e.g., Dkt. No. 8 at ¶ 135 (alleging that Plaintiff “could not participate” in the

program because of “the very condition caused by Defendants’ willful neglect of his medical
needs”). In fact, Plaintiff’s papers confirm that “he was rendered physically unable to participate
in it due to the inadequate medical care provided by Defendants. It can be reasonably inferred that
the medical care had the effect of [ ] disqualifying Plaintiff from participating in the parole
program[.]” Dkt. No. 26 at 22. The Court thus agrees with Defendants that Plaintiff’s attempt to
“repackage” his disparate treatment “allegations as a failure to accommodate theory” also fails.
Freudenberg, 2024 WL 4307176, at *8; see also Dkt. No. 30 at 12-14.
For all of these reasons, the Court grants this portion of the Motion and dismisses Plaintiff’s
ADA and Rehabilitation Act claims.

D. Leave to Amend
“While, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, ‘leave to amend
shall be freely given when justice so requires, it is within the sound discretion of the district court
to grant or deny leave to amend . . . for good reason, including futility, bad faith, undue delay, or
undue prejudice to the opposing party.’” Broidy Cap. Mgmt. LLC v. Benomar, 944 F.3d 436, 447
(2d Cir. 2019) (quoting Kim v. Kimm, 884 F.3d 98, 105 (2d Cir. 2018)). “Moreover, a district
court is under ‘no obligation’ to grant leave to amend when the plaintiff offers merely ‘conclusory
assertion[s]’ that amendment would cure a complaint’s deficiencies and ‘fail[s] to disclose what
additional allegations [he] would make which might lead to a different result.’” Abe v. New York
Univ., No. 14-cv-9323, 2016 WL 1275661, at *11 (S.D.N.Y. Mar. 30, 2016) (Sullivan, J.)
(alterations in original) (first quoting Horoshko v. Citibank, N.A., 373 F.3d 248, 249 (2d Cir. 2004);
and then citing Hayden v. Cnty. of Nassau, 180 F.3d 43, 53-54 (2d Cir. 1999)).
At the end of each of his opposition briefs, Plaintiff includes a one-sentence request for
leave to further amend to “address any deficiencies identified by the Court.” Dkt. No. 26 at 30;

Dkt. No. 27 at 26. Defendants oppose Plaintiff’s request as “both procedurally and substantively
improper.” Dkt. No. 30 at 15; Dkt. No. 31 at 14.
The Court agrees that leave to amend is not appropriate at this juncture. Defendants have
raised many more arguments regarding the deficiencies in Plaintiff’s now-dismissed claims than
those addressed above. Plaintiff’s cursory request fails to suggest how he could successfully
amend any of his now-dismissed claims. See, e.g., United States ex rel. Sisselman v. Zocdoc, Inc.,
No. 22-cv-861, 2024 WL 4305667, at *12 (S.D.N.Y. Sept. 26, 2024) (“The Second Circuit has
consistently held that district courts may deny leave to amend when a plaintiff requests such leave
in a cursory sentence on the last page of an opposition to a motion to dismiss, without offering any

justification or attaching a proposed amended pleading.”) (quoting Cinema Vill. Cinemart, Inc. v.
Regal Ent. Grp., No. 15-cv-05488, 2016 WL 571970, at *7 (S.D.N.Y. Sept. 16, 2016), aff’d, 708
F. App’x 29 (2d Cir. 2017)). As a result, Plaintiff’s request for leave to amend is denied.
V. CONCLUSION
Accordingly, the Court hereby
ORDERS that Defendants’ motions to dismiss, Dkt. Nos. 15, 24, are GRANTED in part
and DENIED in part, as set forth in Section IV of this Memorandum-Decision and Order; and
the Court further
ORDERS that all official capacity claims, as well as the second, third, and fourth claims
in the Amended Complaint, Dkt. No. 8, are DISMISSED; and the Court further
ORDERS that Defendants New York State, DOCCS, Annucci, Koenigsmann, Morley,
Chief Medical Officer Doe, Moores, Hammer, Bozer, Dinello, and Druger are TERMINATED;
and the Court further
ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: August 26, 2025 | . | Jaraaeer
Albany, New York Anne M. Nardacci
U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11128887. Public record. Not legal advice.