Krom

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

HECTOR MUNOZ ZULETA,

Plaintiff,

v.

No. 24-CV-2363 (KMK)

J. KROM, Deputy Superintendent of

Administration; P. PAGE-CANNONIER,

ORDER & OPINION

Acting Nurse Admin.; and DR. M. GUSMAN,

as employees of the Department of Corrections

and Community Supervision in their individual

and official capacities,

Defendants.

Appearances:

Hector Munoz Zuleta

Woodborne, NY

Pro Se Plaintiff

Maurice Nwikpo-Oppong, Esq.

NYS Office of The Attorney General

New York, NY

Counsel for Defendants

KENNETH M. KARAS, United States District Judge:

Hector Munoz Zuleta (“Plaintiff”), proceeding pro se, brings this Action against J. Krom

(“Krom”), P. Page-Cannonier (“Page-Cannonier”), and Dr. M. Gusman (“Gusman”)

(collectively, “Defendants”) and seeks damages for “deliberate indifference, Medical

Malpractice and Misconduct” pursuant to 42 U.S.C. §§ 1983 & 1988. (See Compl. ¶¶ 1–2.)1

Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint, pursuant to Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6) (the “Motion”). (See Not of Mot. (Dkt. No. 21).)

For the following reasons, Defendants’ Motion is granted in part and denied in part.

I. Background

A. Factual Background

The following facts are taken from Plaintiff’s Complaint, as well as materials attached

thereto, and are assumed to be true for the purposes of ruling on the instant Motion. See Buon v.

Spindler, 65 F.4th 64, 69 n.1 (2d Cir. 2023).

Plaintiff is an incarcerated individual residing at Sullivan Correctional Facility (“SCF”)

in Fallsburg, New York. (See Compl. ¶ 6.) In or about March 2021, Plaintiff began suffering

“pain from an ingrownal Hernia! [sic] and commenced attempting to seek and obtain medical

care/assistance, Per: (DOCC’s) sickcall-slip procedure.” (Id. ¶ 14.) Plaintiff was subsequently

seen by SCF’s medical staff and diagnosed with an inguinal hernia. (See id. ¶ 6.) The medical

staff gave Plaintiff a medical memorandum that limited him from lifting “more than [5] lbs”

from April 14, 2021, to June 14, 2021. (Id. ¶ 14.)

Plaintiff claims that his subsequent medical care was delayed because it was “ignored,”

“the result of interferences with prescribed treatment,” or intentionally denied. (Id.) During the

alleged delay, Plaintiff made “every attempt to obtain relief . . . as required by the Prisoner’s

[L]itigation Reform Act,” (see id. ¶ 7), including numerous “complaints, sickcall-slips, letters,

and grievances,” (id. ¶ 14). In response, on October 14, 2022, Carol A. Moores, the Chief

1 Unless otherwise noted, as here, the Court cites to the ECF-stamped page number in the

upper-right corner of each page.

Medical Officer at SCF, wrote a letter to Plaintiff stating that “[t]he Division of Health Services

has investigated [his] concerns with the Health Services staff at Sullivan Correctional Facility.”

(Id. at 10 (Ex. B).) The letter states that Plaintiff was evaluated by a general surgeon on May 4,

2022, and that as of October 14, 2022, he was “awaiting scheduling to have hernia repair surgery

completed.” (See id.)

A few months later, on February 10, 2023, Vernon Baldwin, the Regional Health

Services Administrator at SCF, wrote to Plaintiff that “every effort [wa]s being made to schedule

[his] surgery” which would be “scheduled according to the provider’s availability.” (Id. at 9 (Ex.

B.).) Soon after, on February 16, 2023, Krom wrote a letter to Plaintiff indicating that “a referral

was made and approved to address [his] complaint” and that “[o]nce scheduled by Central Office

scheduler [Plaintiff] will receive procedure.” (Id. at 11 (Ex. B).)

On March 11, 2023, Plaintiff’s hernia ruptured, and he was “removed from his cell and

escorted to the infirmary . . . due to the pain and suffering . . . .” (Id. ¶ 14). On May 12, 2023,

when the condition became “life threatening,” (id. ¶ 7), Plaintiff was “rushed” to a hospital for

hernia repair surgery, (id. ¶ 14).

Plaintiff contends that the “malfeasances of the[] defendants” caused “a prime facie

deliberate indifference, pain, suffering and risk of life.” (Id.) Specifically, Plaintiff claims that

Defendants “failed to timely take action [and] allow[ed] [him] to go on in pain and suffering for

an extended delay in scheduling hernia surgery.” (Id. ¶ 7.) This “intentional denial of, or the

delay in access to medical care” allegedly caused Plaintiff “unnecessary and wanton infliction of

pain.” (Id. ¶ 14.) Plaintiff now seeks $20 million in compensatory damages. (Id. ¶ 15.)

B. Procedural Background

Plaintiff filed his Complaint on March 22, 2024. (See generally Compl.) On May 30,

Defendants filed a letter requesting leave to file a Motion to Dismiss the Complaint, (see

generally Letter Mot. for Conference (Dkt. No. 14)), which the Court granted, (see generally

Dkt. No. 15). Pursuant to the Court-ordered briefing schedule, Defendants filed the current

Motion to Dismiss on October 4, 2024. (See Dkt. No. 15; Not. of Mot.; Defs’ Mem. in Supp. of

Mot. (“Defs’ Mem.”) (Dkt. No. 22).) Because Plaintiff did not file an opposition nor seek an

extension to do so, the Court deemed the Motion fully submitted on January 30, 2025. (See

Memo Endorsement (Dkt. No. 24).)

The following month, Plaintiff sought additional time to file his Opposition. (See Feb.

25, 2025 Letter from Pl. 2 (Dkt. No. 25).) The Court granted Plaintiff a thirty-day extension,

until April 4, 2025, to oppose the Motion. (See Dkt. No. 26). After Plaintiff failed to file an

Opposition by the extended deadline, Defendants again requested that the Motion be fully

submitted. (See Dkt. No. 27.) The Court granted Defendants’ request on April 27, 2025. (See

Dkt. No. 28.)

On May 8, 2025, Plaintiff requested another extension, asking that the Court excuse his

delay on account of, inter alia, an “illegal strike by corrections officers and the effect this has had

on facility operations.” (See May 8, 2025 Letter From Pl. 1 (Dkt. No. 29).) The Court granted

Plaintiff a final extension until May 27, 2025, to oppose the Motion. (See Dkt. No. 30.) After

Plaintiff again failed to do so, the Court deemed the Motion fully submitted. (See Dkt. Nos. 31–

32.)

II. Discussion

A. Standard of Review

“The standards of review under Rules 12(b)(1) and 12(b)(6) . . . are substantively

identical.” Lester v. Mount Pleasant Cottage Sch. Union Free Sch. Dist., No. 19-CV-5247, 2020

WL 3618969, at *3 (S.D.N.Y. July 2, 2020) (quoting Neroni v. Coccoma, No. 13-CV-1340, 2014

WL 2532482, at *4 (N.D.N.Y. June 5, 2014)). “In deciding both types of motions, the Court

must accept all factual allegations in the complaint as true, and draw inferences from those

allegations in the light most favorable to the plaintiff.” Id. (quoting Gonzalez v. Option One

Mortg. Corp., No. 12-CV-1470, 2014 WL 2475893, at *2 (D. Conn. June 3, 2014)).

1. Rule 12(b)(1)

“[F]ailure of subject matter jurisdiction is not waivable and may be raised at any time by

a party or by the court sua sponte. If subject matter jurisdiction is lacking, the action must be

dismissed.” Biener v. Credit Control Servs., Inc., No. 21-CV-2809, 2023 WL 2504733, at *3

(S.D.N.Y. Mar. 14, 2023) (alteration in original) (quoting Lyndonville Sav. Bank & Tr. Co. v.

Lussier, 211 F.3d 697, 700–01 (2d Cir. 2000)); see also Wells Fargo Bank v. 5615 N. LLC, No.

20-CV-2048, 2022 WL 15523689, at *3 (S.D.N.Y. Oct. 27, 2022) (quoting Lyndonville, 211

F.3d at 700–01). “A federal court has subject matter jurisdiction over a cause of action only

when it has authority to adjudicate the cause pressed in the complaint.” Bryant v. Steele, 25 F.

Supp. 3d 233, 241 (E.D.N.Y. 2014) (citing Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir.2008),

rev’d en banc on other grounds, 585 F.3d 559 (2d Cir.2009) (quotation marks omitted)).

“Determining the existence of subject matter jurisdiction is a threshold inquiry[,] and a claim is

properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district

court lacks the statutory or constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank

Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citation omitted)), aff’d, 561 U.S. 247 (2010); see also

United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014) (describing subject matter jurisdiction as

a “threshold question” (citation omitted)).

2. Rule 12(b)(6)

The Supreme Court has held that although a complaint “does not need detailed factual

allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of

[its] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (alteration adopted, quotation marks and citation omitted). Indeed, Rule 8 of the Federal

Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it

tenders naked assertions devoid of further factual enhancement.” Id. (alteration adopted and

quotation marks omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a

right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555. Although “once a

claim has been stated adequately, it may be supported by showing any set of facts consistent with

the allegations in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to

state a claim to relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or

her] claims across the line from conceivable to plausible, the[ ] complaint must be dismissed,”

id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim

for relief will . . . be a context-specific task that requires the reviewing court to draw on its

judicial experience and common sense. But where the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not

‘show[n]’—‘that the pleader is entitled to relief.’” (citation omitted) (second alteration in

original) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous

departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the

doors of discovery for a plaintiff armed with nothing more than conclusions.”).

Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its

consideration to facts stated on the face of the complaint, in documents appended to the

complaint or incorporated in the complaint by reference, and to matters of which judicial notice

may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (citation

and quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317 (S.D.N.Y.

2016) (same). However, when the complaint is from a pro se plaintiff, the Court may consider

“materials outside the complaint to the extent that they are consistent with the allegations in the

complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug.

2, 2013) (quotation marks omitted), including “documents that a pro se litigant attaches to his

opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec.

15, 2010) (italics omitted), statements by the plaintiff “submitted in response to [a defendant's]

request for a pre-motion conference,” Jones v. Fed. Bureau of Prisons, No. 11-CV-4733, 2013

WL 5300721, at *2 (E.D.N.Y. Sept. 19, 2013), “documents . . . of which [the] plaintiff[ ] had

knowledge and relied on in bringing suit,” Chambers v. Time Warner, Inc., 282 F.3d 147, 153

(2d Cir. 2002) (quotation marks omitted), and “[plaintiff's] opposition memorandum,” Gadson v.

Goord, No. 96-CV-7544, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997).

Moreover, where, as here, a plaintiff proceeds pro se, the court must “construe[ ] [the

plaintiff’s] [complaint] liberally and interpret[ ] [it] to raise the strongest arguments that [it]

suggest[s].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (citation omitted).

However, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from

compliance with relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp.

2d 555, 559 (S.D.N.Y. 2013) (citation and quotation marks omitted); see also Caidor v.

Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to

inform themselves regarding procedural rules and to comply with them.” (italics and citation

omitted)).

B. Analysis

Plaintiff asserts a single claim under § 1983 for deliberate indifference, in violation of the

Eighth Amendment. (Compl. ¶¶ 1, 13.) Defendants argue that the Complaint must be dismissed

because: (1) pursuant to Rule 12(b)(1), the Court lacks subject matter jurisdiction, (Defs’ Mem.

17); (2) pursuant to Rule 12(b)(6), Plaintiff fails to state a claim for deliberate indifference, (id.

at 9–11); and (3) Plaintiff does not allege that any Defendant was personally involved, (id. at 11–

14). The Court will address these arguments only as necessary to resolve the Motion.

1. Eleventh Amendment Immunity

Defendants argue that Plaintiff’s § 1983 claim against Defendants in their official

capacities must be dismissed because it is barred by the Eleventh Amendment. (Id. at 17.) The

Court agrees.

“[A]s a general rule, state governments may not be sued in federal court unless they have

waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’

Eleventh Amendment immunity.” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009)

(alteration adopted and quotation marks omitted). New York has not waived its Eleventh

Amendment immunity to suit in federal court, and Congress did not abrogate the states’

immunity in enacting 42 U.S.C. § 1983. See Trotman v. Palisades Interstate Park Comm’n, 557

F.2d 35, 40 (2d Cir. 1977); Dubarry v. Capra, No. 21-CV-5487, 2021 WL 3604756, at *1

(S.D.N.Y. Aug. 13, 2021) (same). “[T]he immunity recognized by the Eleventh Amendment

extends beyond the states themselves to state agents and state instrumentalities that are,

effectively, arms of a state.” Gollomp, 568 F. 3d at 366 (quoting Woods v. Rondout Valley Cent.

Sch. Dist. Bd of Educ., 466 F.3d 232, 236 (2d Cir. 2006)). The Eleventh Amendment therefore

also bars the claim for damages against the individual Defendants in their official capacities. See

Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993) (“To the extent that a state

official is sued for damages in his official capacity, such a suit is deemed to be a suit against the

state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the

state” (citing Kentucky v. Graham, 473 U.S. 159, 166–67 (1985)); Leon v. Rockland Psychiatric

Ctr., 232 F. Supp. 3d 420, 436 (S.D.N.Y. 2017); Perciballi v. New York, No. 09-CV-6933, 2010

WL 3958731, at *4 (S.D.N.Y. Sept. 28, 2010) (quoting Ying Jing Gan, 996 F.2d at 529).

Plaintiff’s claim against Defendants in their official capacities is therefore dismissed. See

Akinlawon v. Polonco, No. 21-CV-2621, 2025 WL 887621, at *9 (S.D.N.Y. Mar. 21, 2025)

(dismissing claims for damages asserted against individual correctional employees because they

were entitled to Eleventh Amendment immunity); Samuels v. N.Y. Dep’t of Lab., No. 23-CV-

8004, 2025 WL 27737, at *4 (S.D.N.Y. Jan. 3, 2025) (same); Colon v. Gunsett, No. 22-CV-635,

2023 WL 2139790, at *3 (S.D.N.Y. Feb. 21, 2023) (same). The Court will further address below

Plaintiff’s claim against Defendants in their individual capacities.

2. Deliberate Indifference

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S.

Const. amend. VIII. That broad proscription extends to a prison official’s “deliberate

indifference to serious medical needs of prisoners.” Spavone v. N.Y. State Dep’t of Corr. Servs.,

719 F.3d 127, 138 (2d Cir. 2013) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)); Zeigler

v. Annucci, No. 23-CV-707, 2024 WL 4252682, at *6 (S.D.N.Y. Sept. 20, 2024) (quoting the

same).

“The standard of deliberate indifference includes both subjective and objective

components.” Mallet v. New York State Dep’t of Corr. & Cmty. Supervision, 126 F.4th 125, 132

(2d Cir. 2025). As for the subjective requirement, “the charged officials must be subjectively

reckless in their denial of medical care.” Spavone, 719 F.3d at 138. This means that the

defendant must “appreciate the risk to which a prisoner was subjected,” and have a “subjective

awareness of the harmfulness associated with those conditions.” Darnell v. Pineiro, 849 F.3d

17, 35 (2d Cir. 2017); see also Mallet, 126 F.4th at 132 (noting that the “acts or omissions” of

the defendant must “evince a conscious disregard of a substantial risk of serious harm”

(alteration adopted and quotation marks omitted)); Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir.

2014) (“Deliberate indifference is a mental state equivalent to subjective recklessness,” and it

“requires that the charged official act or fail to act while actually aware of a substantial risk that

serious inmate harm will result.” (citation, footnote, and quotation marks omitted)). In other

words, “[i]n medical-treatment cases not arising from emergency situations, the official’s state of

mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the

plaintiff proves that the official acted with deliberate indifference to inmate health.” Id. (citation

and quotation marks omitted). “[A] delay in treatment does not violate the constitution unless it

involves an act or failure to act that evinces a conscious disregard of a substantial risk of serious

harm.” Price v. Koenigsmann, No. 19-CV-4068, 2022 WL 125818, at *7 (S.D.N.Y. Jan. 13,

2022); see also Pabon v. Wright, No. 99-CV-2196, 2004 WL 628784, at *8 (S.D.N.Y. Mar. 29,

2004), aff’d, 459 F.3d 241 (2d Cir. 2006). However, “mere negligence” is insufficient to state a

claim for deliberate indifference. Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (citation

and quotation marks omitted).

As for the objective prong, “the alleged deprivation of adequate medical care must be

sufficiently serious.” Spavone, 719 F.3d at 138 (citation and quotation marks omitted). “There

is no static test to determine whether a deprivation is sufficiently serious; instead, the conditions

themselves must be evaluated in light of contemporary standards of decency.” Darnell, 849 F.3d

at 30 (citation and quotation marks omitted).

a. Objective Prong

Beginning with the objective prong, “[i]n general, a ‘sufficiently serious’ medical need is

a ‘condition of urgency, one that may produce death, degeneration, or extreme pain.’” Hall v.

Dep’t of Corr. Med. Dep’t, No. 18-CV-6892, 2021 WL 2894646, at *5 (S.D.N.Y. July 8, 2021)

(quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)). When the alleged inadequate

medical treatment “is a temporary delay or interruption in the provision of otherwise adequate

medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment

rather than the prisoner’s underlying medical condition alone in analyzing whether the alleged

deprivation is, in ‘objective terms, sufficiently serious,’ to support an Eighth Amendment claim.”

Taylor v. Small, No. 22-CV-2762, 2024 WL 1605066, at *6 (S.D.N.Y. Apr. 11, 2024) (quoting

Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)) (emphases in original). Importantly here,

“[t]he Eighth Amendment forbids not only deprivations of medical care that produce physical

torture and lingering death, but also less serious denials which cause or perpetuate pain.”

Kucharczyk v. Westchester County, 95 F. Supp. 3d 529, 541 (S.D.N.Y. 2015) (quoting Todaro v.

Ward, 565 F.2d 48, 52 (2d Cir. 1977)).

Here, Plaintiff alleges that Defendants’ delay in treating his hernia “allow[ed] [him] to go

on in pain and suffering for an extended delay in scheduling hernia surgery,” which caused him

“unnecessary and wanton infliction of pain.” (Compl. ¶¶ 7, 14.) Moreover, he alleges that he

did not receive treatment until the hernia ruptured, creating a “life threatening” condition and

necessitating emergency surgery. (See id.) The Court finds these allegations are sufficient to

meet the objective component of the deliberate indifference standard. See Solek v. Wallace, No.

20-CV-01600, 2021 WL 2186431, at *8 (D. Conn. May 28, 2021) (finding allegations that a

plaintiff’s “umbilical hernia caused him to experience chronic pain and that the pain worsened

during the year before he underwent a surgical procedure to correct the condition” satisfied the

objective prong and collecting cases); Harnage v. Lightner, No. 17-CV-263, 2019 WL 319395,

at *4 (D. Conn. Jan. 24, 2019) (assuming, on a motion for summary judgment, “that the

plaintiff’s hernia constitutes a serious medical need” where “[c]learly the delay in treatment

worsened the plaintiff’s condition”); Jenkins v. Trachtman, No. 17-CV-0126, 2017 WL 7163935,

at *3 (N.D.N.Y. Dec. 22, 2017) (noting that “[w]hile not every hernia rises to the level of a

serious medical need, courts distinguish hernias that require surgery and cause pain” and

collecting cases), report and recommendation adopted, 2018 WL 626303 (Jan. 30, 2018);

Kucharczyk, 95 F. Supp. 3d at 540–42 (gathering authority and concluding that allegations a

plaintiff was delayed hernia repair surgery for five months were sufficient “to suggest that [the

p]laintiff was actually deprived of adequate medical care” and that the inadequacy was

sufficiently serious (quotation marks omitted)).2

2 Notably, Defendants do not contest that “Plaintiff’s allegations that he suffered from a

painful hernia that eventually required surgical repair” are sufficiently serious for Eighth

Amendment purposes. (See Defs’ Mem. 10.)

b. Subjective Prong

As for the subjective prong, Defendants argue that Plaintiff offered “no factual

allegations to show that any Defendant was deliberately indifferent to Plaintiff’s serious medical

condition.” (See Defs’ Mem. 10.) The Court disagrees.

It is well established that “denying or delaying needed treatment for a serious medical

condition” may amount to deliberate indifference if, for example, an “official[ ] delayed care as a

form of punishment . . . or delayed major surgery.” Myrie v. Calvo, 615 F. Supp. 2d 246, 248

(S.D.N.Y. 2009); see also Feliz v. City of New York, No. 18-CV-5023, 2019 WL 6831552, at *6

(S.D.N.Y. Aug. 5, 2019) (identifying cases where delays in treatment satisfied the subjective

element of a deliberate indifference claim) (citing Lloyd v. Lee, 570 F. Supp. 2d 556, 569

(S.D.N.Y. 2008)), report and recommendation adopted, No. 18-CV-5023, 2019 WL 4386017 at

*5 (S.D.N.Y. Sept. 13, 2019). “If surgery was medically necessary,” allegations of delayed

surgery may “support the claim that it was deliberate indifference towards [the plaintiff’s]

medical needs, rather than an exercise of professional judgment to decide that [the plaintiff]

could wait . . . for his surgery.” Kucharczyk, 95 F. Supp. 3d at 542 (quotation marks omitted)

(citing Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974) and Colon v. County of Nassau,

No. 12-CV-4466, 2014 WL 4904692, at *6 (E.D.N.Y. Sept. 26, 2014)).

Here, Plaintiff alleges that he developed a painful hernia on March 2021 and, on April 14,

2021, was placed on a medical limitation for two months to avoid lifting more than five pounds.

(Compl. ¶ 14; id. at 8 (Ex. A) (Apr. 14, 2021 Medical Limitations Memo).) On May 4, 2022,

over a year later and after “[n]umerous complaints, sickcall-slips, letters and grievances[,]”

Plaintiff was “evaluated by the general surgeon” for hernia repair surgery. (See id. at 10 (Ex. B)

(Oct. 14, 2022 Ltr. to Plaintiff from C. Moores); see also id. ¶¶ 7, 14.) Over five months later,

Plaintiff was still “awaiting scheduling” for that surgery. (Id. at 10 (Ex. B) (Oct. 14, 2022 Ltr. to

Plaintiff from C. Moores).) Four months after that, Plaintiff was again notified that he did not

have a surgery date scheduled. (Id. at 9 (Ex. B) (Feb. 10, 2023 Ltr. to Plaintiff from V.

Baldwin); id. at 11 (Ex. B) (Feb. 16, 2023 Ltr. to Plaintiff from J. Krom).) The following month,

on March 11, 2023, “Plaintiff had to be removed from his cell and escorted to the infirmary . . .

due to the pain and suffering” from his hernia rupturing. (Id. ¶ 14.) And finally, after two

additional months passed, Plaintiff was “rushed to an [o]utside hospital” on May 12, 2023, for

surgery—over two years after Plaintiff first developed the hernia. (See id.) These allegations are

sufficient to suggest Defendants’ deliberate indifference to Plaintiff’s serious medical need. See

Barnes v. Uzu, No. 20-CV-5885, 2020 WL 6083365, at *3 (S.D.N.Y. Oct. 14, 2020) (granting

leave to amend complaint asserting a deliberate indifference claim where allegations that the

plaintiff suffered an “injured Achilles tendon” and that “medical staff denied his repeated request

for an MRI for two months, although he was in constant pain, may suggest more than

negligence”); Kucharczyk, 95 F. Supp. at 542 (holding the plaintiff stated a deliberate

indifference claim where the defendant told him that “the surgery was not going to happen

because [the plaintiff’s] injuries were not life threatening, and he would therefore have to wait to

receive surgery until he was transferred or . . . released”); Adams v. Beaudouin, No. 09-CV-2136,

2011 WL 240714, at *1, 7–8 (E.D.N.Y. Jan. 24, 2011) (denying motion for summary judgment

based, in part, on delay of hernia surgery); Lloyd, 570 F. Supp. 2d at 569 (denying motion to

dismiss where doctors “knew that [the plaintiff] was experiencing extreme pain and loss of

mobility,” but “[n]ine months went by after [an] MRI was first requested before the MRI was

actually taken,” resulting in the plaintiff experiencing ongoing pain for over a year); see also

Hemmings v. Gorczyk, 134 F.3d 104, 108–09 (2d Cir. 1998) (holding the plaintiff stated a

deliberate indifference claim in which the complaint alleged, inter alia, that medical personnel

willfully ignored an “easily observable” ruptured Achilles tendon about which the plaintiff

“complained about for almost two months before being referred to a specialist”).

Defendants’ arguments to the contrary are unavailing. First, Defendants argue Plaintiff

did not allege that “any Defendant . . . knew of and disregarded Plaintiff’s serious medical

condition,” (see Defs’ Mem. 11), and similarly, did not “allege any facts showing that any

Defendant was personally involved in any alleged Eighth Amendment violation,” (see id. at 11–

13). The Court disagrees.

Plaintiff specifically alleges that: Krom “was made aware of [Plaintiff’s] serious medical

need,” “reviewed the situation,” and then “allowed the delay in care to proceed,” (id. ¶ 10); Page-

Cannonier was “very much aware of [Plaintiff’s] [c]omplaint[s] and [g]rievances” and was aware

that “Plaintiff suffered from a [h]ernia for an extended delay/period of time and failed to act,”

(id. ¶ 11); and that Gusman—the “main Health care provider/Officer[] at Sullivan”—was

“[c]harged with Plaintiff’s [h]ealth [c]are,” “allowed this deliberate[d] indifference to a serious

[m]edical need,” and allowed Plaintiff’s hernia surgery to “be delayed for an excessive time,

causing pain [and] suffering,” (id. ¶ 12). Moreover, Plaintiff attaches to his Complaint a

February 2023 letter from Krom—written over four months after Plaintiff was referred for

surgery—wherein Krom acknowledges Plaintiff’s “correspondence regarding [his] Surgery,”

notes that Plaintiff was awaiting scheduling for the procedure and advises Plaintiff “to address

[his] medical issues via established sick call procedures.” (See id. at 11 (Ex. B).) Page-

Cannonier is also copied on this letter. (Id.) Construing these allegations liberally, the Court

concludes Plaintiff has adequately alleged that Krom, Page-Cannonier, and Gusman were

personally aware of Plaintiff’s serious medical condition and failed to address it. See Rodriguez

v. Dwyer, No. 23-CV-1258, 2024 WL 5168367, at *9–10 (D. Conn. Dec. 19, 2024) (noting the

plaintiff’s “allegations are thin, but sufficient for pleading purposes to suggest continuing

deliberate indifference by [the defendant provider] to [the plaintiff’s] need for medical attention”

where the plaintiff alleged he “submitted requests for medical treatment due to intolerable

backpain and ineffective medication” but did not receive treatment); see also Paul v. Bailey, No.

09-CV-5784, 2013 WL 2896990, at *5 (S.D.N.Y. June 13, 2013) (“[H]olding the pro se

[p]laintiff to a lower pleading standard, [the plaintiff] has alleged facts that create a plausible

inference that [the non-medical defendants] demonstrated deliberate indifference to Plaintiff’s

medical condition.”).

Defendants next argue that Krom cannot be held liable as his only personal involvement

was “receiving a letter from an inmate.” (See Defs’ Mem. 12.) But, as noted above, Plaintiff

alleges that Krom knew of his condition apart from merely receiving a letter, (see Compl. ¶ 10

(alleging Krom was “made aware of [Plaintiff’s] serious medical need,” “reviewed the situation,”

and then “allowed the delay in care to proceed”)), and, moreover, “at the pleading stage,”

Plaintiff is “entitled to have the court draw the reasonable inference . . . that [Krom] in fact

received the Letter, read it, and thereby became aware of the alleged conditions of which

[Plaintiff] complained,” see Grullon v. City of New Haven, 720 F.3d 133, 141 (2d Cir. 2013); see

also Zahaf v. New York Dep’t of Corr. & Cmty. Supervision, No. 22-CV-291, 2024 WL

4362313, at *7 (W.D.N.Y. Sept. 30, 2024) (rejecting a defendant’s argument that he was not

personally involved in the alleged violation where he “merely received” a letter from plaintiff

alerting him to the violation (citing Grullon, 720 F.3d at 140–41).

Finally, Defendants argue that Krom cannot be held liable because he was a non-medical

officer who “lacked the medical training and authority to supersede the medical staff’s

decisions.” (See Defs’ Mem. 12–13.) However, that Krom’s alleged role is administrative rather

than medical does not “alter the relevant analysis, because ‘the same standards apply to a claim

of deliberate indifference to serious medical needs on the part of nonmedical prison personnel.’”

Labossiere v. Baxter, No. 21-CV-10538, 2025 WL 887623, at *5 (S.D.N.Y. Mar. 21, 2025)

(alteration adopted) (quoting Dumel v. Westchester County, No. 19-CV-2161, 2021 WL 738365,

at *10 (S.D.N.Y. Feb. 25, 2021)); Feliciano v. Anderson, No. 15-CV-4106, 2017 WL 1189747,

at *13 (S.D.N.Y. Mar. 30, 2017) (“The same standards apply to a claim of deliberate indifference

. . . on the part of nonmedical prison personnel.” (quoting Hodge v. Coughlin, No. 92-CV-622,

1994 WL 519902, at *11 (S.D.N.Y. Sept. 22, 1994), aff’d, 52 F.3d 310 (2d Cir. 1995)). Indeed,

“[n]on-medical personnel may be held liable for deliberate indifference to medical needs where a

plaintiff demonstrates that the prison personnel intentionally denied or delayed access to medical

care or intentionally interfered with medical treatment once it was prescribed.” Doane v. C.O.

Doe, et al., No. 25-CV-516, 2025 WL 2612829, at *5 (N.D.N.Y. June 27, 2025) (citing Banks v.

No. 8932 Corr. Officer, 2013 WL 673883, at *4 (S.D.N.Y. Feb. 25, 2013)); see also Crandell v.

Ross, No. 19-CV-6552, 2020 WL 134576, at *4 (W.D.N.Y. Jan. 13, 2020) (same). Here, the

crux of Plaintiff’s allegations against Krom is that Krom was “made aware of [Plaintiff’s] serious

medical need” but still “allowed the delay in care to proceed,” (Compl. ¶ 10)—in other words,

that Krom “intentionally delayed access to medical care when [Plaintiff] was in extreme pain and

ha[d] made his medical problem known to the attendant prison personnel,’” Meggison v. N.Y.

State Dep’t of Corr. & Cmty. Supervision, No. 20-CV-0436, 2020 WL 13801098, at *3

(N.D.N.Y. May 21, 2020) (quoting Hodge, 1994 WL 519902, at *11)). That is sufficient, at this

stage, to allege a plausible deliberate indifference claim against Krom. See Nickelson v. Fischer,

No. 15-CV-00227, 2016 WL 1128181, at *9 (N.D.N.Y. Feb. 16, 2016) (“Plaintiff has made a

plausible showing of deliberate indifference to his serious medical needs by various [non-

medical] officials who have been involved in the denial of Plaintiff’s physician recommended

transfer to a flats facility.” (footnote omitted)), report and recommendation adopted, No. 15-CV-

0227, 2016 WL 1122077 (N.D.N.Y. Mar. 22, 2016); see also Bailey, 2013 WL 2896990, at *4

(denying motion to dismiss where the plaintiff alleged the non-medical defendants “had firsthand

knowledge of [p]laintiff’s medical condition and need for alternative footwear, but ignored it”

and noting that “[s]imply because they are not physicians does not mean that [the defendants] are

not responsible for ensuring that prisoners receive proper [medical care] or may ignore a doctor’s

orders”).3

III. Conclusion

For the foregoing reasons, the Court grants Defendants’ Motion to Dismiss insofar as

Plaintiff’s deliberate indifference claim is asserted against Defendants in their official capacities

and denies Defendants’ Motion to Dismiss insofar as the claim is asserted against Defendants in

their individual capacities.4

The Court will hold a telephonic conference on October 27, 2025 at 10:30 AM.

3 Defendants also argue that they are entitled to qualified immunity on this claim. (See

Defs’ Mem. 14–16.) However, because Defendants “make no actual arguments about why they

are entitled to qualified immunity” but instead only “cite generic caselaw,” the Court will not

consider this argument at this time. Whitley v. Ort, No. 17-CV-3652, 2018 WL 4684144, at *10

(S.D.N.Y. Sept. 28, 2018) (quoting Whitley v. Bowden, No. 17-CV-3564, 2018 WL 2170313, at

*12 (S.D.N.Y. May 10, 2018)); Vega v. Rell, No. 09-CV-737, 2011 WL 2471295, at *25 (D.

Conn. June 21, 2011) (“Absent the defendants’ specific legal analysis of the claims and

supporting allegations, the court cannot consider the defendants’ qualified immunity arguments

at this time.”).

4 To the extent the Complaint may be construed as alleging state law claims such as

medical malpractice or negligence, (see Compl. ¶ 3), those claims survive as Defendants do not

address them in their Motion, (see generally Defs’ Mem.).

For the reasons set forth above, the Clerk of the Court is respectfully directed to terminate

the pending Motion, (Dkt. No. 21), and mail a copy of this Opinion and Order to Plaintiff.

SO ORDERED.

Dated: September 24, 2025 Hei. Dy

White Plains, New York {

KENNETH M. KARAS

United States District Judge

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