Washburn

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

MATTHEW WASHBURN,

Plaintiff,

V.

No. 1:25-CV-1574

PATROL OFFICER ORDWAY, (MAD/PJE)

Defendant.

APPEARANCES:

Matthew Washburn

Warren County Correctional Facility

1400 State Route 9

Lake George, New York 12845

Plaintiff pro se

“| PAUL J. EVANGELISTA

U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION AND ORDER’

|. In Forma Pauperis

Plaintiff pro se Matthew Washburn (“plaintiff’), who is incarcerated, commenced

this action on November 7, 2025, by filing a complaint. See Dkt. No. 1. In lieu of paying

this Court’s filing fee, plaintiff submitted an application for leave to proceed in forma

pauperis (“IFP”). See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP application

and determines that he financially qualifies to proceed IFP.2 This Court must now assess

the merits of plaintiff's complaint pursuant to 28 U.S.C. §§ 1915; 1915A.

’ This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C.

§ 636(b) and N.D.N.Y. L.R. 72.3(c).

2 Plaintiff is advised that although he has been granted IFP status, he is still required to pay any fees and

costs they may incur in this action, including, but not limited to, copying fees, transcript fees, and witness

fees.

Il. Legal Standards

28 U.S.C. § 1915 directs that, when a plaintiff seeks to proceed IFP, “the court shall

dismiss the case at any time if the court determines that . . . the action or appeal (i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

1915(e)(2)(B). “Thus, it is a court’s responsibility to determine that a plaintiff may properly

maintain his complaint before permitting him to proceed further with his action.” Praileau

v. Fischer, 930 F. Supp. 2d 383, 394 (N.D.N.Y. 2013).

The Second Circuit affords pro se litigants a “special solicitude” such “that a pro se

litigant’s submissions must be construed liberally, and that such submissions must be

read to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of

_,| Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation marks, citations, and footnote

omitted); Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)

(noting that when a plaintiff proceeds pro se, “the court must construe his submissions

liberally and interpret them to raise the strongest arguments that they suggest.”) (internal

quotation marks and citation omitted).

The Court is not required to accept unsupported allegations that are devoid of

m| SUfficient facts or claims. Although detailed allegations are not required at the pleading

stage, the complaint must still include enough facts to provide the defendants with notice

of the claims against them and the grounds upon which these claims are based. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atlantic v. Twombly, 550 U.S.

544, 555-56 (2007). Ultimately, the plaintiff must plead “enough facts to state a claim to

relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 678

(“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.”).

“If dismissal is warranted and the plaintiff is pro se, the court generally affords the

plaintiff leave to amend the complaint.” Rich v. AKwesasne Mohawk Casino Resort, No.

| 8:24-CV-255 (AMN/CFH), 2024 WL 3677262, at *2 (N.D.N.Y. Aug. 6, 2024), report and

recommendation adopted, No. 8:24-CV-255 (AMN/PJE), 2025 WL 286937 (N.D.N.Y. Jan.

24, 2025) (citing Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995)). “However, an

opportunity to amend is not required where ‘the problem with [the plaintiff's] causes of

action is substantive’ such that ‘better pleading will not cure it.” /d. (quoting Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).

Ill. Discussion

A. Plaintiff's Complaint

Plaintiff's complaint arises out of the following series of events. On an unknown

date, at an unspecified location, plaintiff was in an argument with his nephew. See DKt.

No. 1 at 5. Plaintiff's nephew proceeded to hit him two times with a sledgehammer, once

in the lower leg and once in the upper leg. See id. The police were called and Patrol

™ Officer Ordway, Sheriff Department (“Ordway”) responded to the call. See id. Plaintiff

alleges that he told Ordway about “his leg” and that he needed “to go to the hospital.” /d.

Plaintiff further alleges that Ordway responded by telling him that he “was fine” and “if [he]

could walk [he] will be fine." /d. Plaintiff claims that this conversation was recorded on

Ordway’s body-camera. See id.

In his complaint, filed a week after the alleged incident, Plaintiff asserts that his

“bottom whole shin bone is swelled and bruised and [his] upper [femur] . . . has a 10 x 10

inch deep black and purple bruise.” Dkt. No. 1 at 5. He claims that his pain level is a

10/10 and that “it’s been a week”, and “it’s not gotten any better.” /d. Plaintiff states that

X-rays were performed at the “jail.” /d. Plaintiff proclaims that “this is [deliberately]

"| indifferent to my right to medical treatment and my health.” /d. Plaintiff seeks $300,000

in “actual’, “monetary”, and “punitive” damages. See Dkt. No. 1 at 6.

B. Analysis

Plaintiff seeks to proceed pursuant to 42 U.S.C. § 1983 against Ordway, alleging

that his Fourteenth Amendment rights were violated. See generally Dkt. No. 1. See also

Triestman, 470 F.3d at 475 (“This policy of liberally construing pro se submissions is

_| driven by the understanding that ‘[i]Jmplicit in the right of self-representation is an

obligation on the part of the court to make reasonable allowances to protect pro se

litigants from inadvertent forfeiture of important rights because of their lack of legal

training.”) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).

1. Defendant’s Capacities

Although the complaint lists Ordway as “Patrol Officer Ordway, Sherriff Department

m| (Sic),” plaintiff does not specify whether he wishes to sue Ordway in his official capacity,

individual capacity, or both. See generally Dkt. No. 1. Accordingly, “[a]t this early stage,

the undersigned will consider whether either a personal or official capacity claim can

survive initial review.” Scott v. Crossway, No. 1:22-CV-500 (BKS/CFH), 2022 WL

16646531, at “6 (N.D.N.Y. Nov. 3, 2022), report and recommendation adopted, No. 1:22-

CV-500 (BKS/CFH), 2023 WL 34543 (N.D.N.Y. Jan. 4, 2023) (citing Ying Jing Gan v. City

of New York, 996 F.2d 522, 530 (2d Cir. 1993) (citations and quotation marks omitted)

(“[IIn many cases, a complaint against public officials will not clearly specify whether

officials are sued personally, in their official capacity, or both, and only [t]he course of

proceedings . . . will indicate the nature of the liability to be imposed[.]’)).

2. Individual Capacity

a. Fourteenth Amendment: Deliberate Medical Indifference

Reading plaintiff's complaint liberally and affording him due solicitude, it appears

that Ordway took plaintiff into custody after responding to the altercation between plaintiff

and his nephew. See Dkt. No. 1 at 5. This conclusion is based on (1) plaintiff's statements

that his injuries from the altercation were evaluated in “jail”; (2) plaintiff's complaint lists

his address of record as the “Warren County Jail’; and (3) plaintiff's complaint was filed

_,| from the “Warren County Correctional Facility” (“Warren County CF”). /d. at 2, 5; Dkt. No.

1-2. Accordingly, it is logical to conclude that plaintiff was a pretrial detainee at the time

of the alleged constitutional violation; therefore, his claim will be evaluated under the

Fourteenth Amendment. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (quoting

Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007) (quoting Benjamin v. Fraser, 343 F.3d 35,

49-50 (2d Cir. 2003), rev’d on other grounds sub nom., Ashcroft v. Iqbal, 556 U.S. 662,

m|678 (2009) (“A pretrial detainee’s claims are evaluated under the Due Process Clause

because, [p]retrial detainees have not been convicted of a crime and thus may not be

punished in any manner — neither cruelly and unusually nor otherwise.”) (internal

quotation marks omitted)).

To state a claim for deliberate medical indifference, “a pretrial detainee must satisfy

a two-pronged test.” Oferi v. Palmatier, No. 9:23-CV-986 (AMN/ML), 2024 WL 808774,

at *5 (N.D.N.Y. Feb. 27, 2024). “First, the alleged deprivation of adequate medical care

must be sufficiently serious.” /d. (quoting Lloyd v. City of New York, 246 F.Supp.3d 704,

717 (S.D.N.Y. 2017) (quoting Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127,

138 (2d Cir. 2013))) (internal quotation marks omitted). “Second, the defendant must act

with a ‘sufficiently culpable state of mind.” /d. (quoting Hathaway v. Coughlin, 99 F.3d

553 (2d Cir. 1996)).

The first prong is an objective in which “a plaintiff must show that his ‘medical need

was a condition of urgency, one that may produce death, degeneration, or extreme pain.”

Savatxath v. Demer, No. 3:15-CV-0082 (DNH), 2018 WL 8755515, at *18 (N.D.N.Y. Mar.

31, 2018) (quoting Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (internal

quotations omitted)); Oteri, 2024 WL 808774, at *5 (quoting Johnson, 412 F.3d at 403

_,| (quoting Hemmings v. Gorcezyk, 134 F.3d 104, 108 (2d Cir. 1998))) (noting that the

objective prong “requires that the alleged deprivation of medical treatment is, in objective

terms, sufficiently serious — that is, the . .. medical need was ‘a condition of urgency, one

that may produce death, degeneration, or extreme pain.’”).

In determining whether a medical need is sufficiently serious to be

cognizable as a basis for a constitutional claim for deprivation of medical

care, we consider factors such as whether a reasonable doctor or patient

would find the injury important and worthy of treatment, whether the medical

tri condition significantly affects an individual's daily activities, and whether the

illness or injury inflicts chronic and substantial pain.

Loveall v. Walker, 807 F. Supp. 3d 148, 161 (N.D.N.Y. 2025) (quoting Charles v. Orange

County, 925 F.3d 73, 86 (2d Cir. 2019)). Similarly, “where the allegations amount to a

delay in medical treatment (rather than a complete deprivation of treatment), courts look

at the particular risk of harm faced by an inmate due to the delay in treatment, rather than

the severity of the inmate's underlying medical condition.” Robinson v. Broome Cnty.

Sheriff, No. 9:22-CV-0023 (GLS/CFH), 2022 WL 2914476, at *2 (N.D.N.Y. July 25, 2022)

(citing Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003)).

The second prong is subjective such that “a pretrial detainee . . . must establish

that the defendant either: ‘acted intentionally to impose the alleged condition’ or

‘recklessly failed to act with reasonable care to mitigate the risk that the condition posed

“Ito the pretrial detainee.” Oteri, 2024 WL 808774, at *5 (quoting Logan v. City of

Schenectady, No. 18-CV-1179 (BKS/CFH), 2019 WL 3803631, at *4 (N.D.N.Y. Aug. 13,

2019) (quoting Darnell, 849 F.3d at 35)); Spiezio v. Martinez, 653 F. Supp. 3d 8, 26

(N.D.N.Y. 2023) (“A plaintiff must show something more than mere negligence to establish

deliberate indifference in the Fourteenth Amendment context.”) (internal quotation marks

and citation omitted). “Non-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.” Atutis v. Harder, No. 9:21-CV-0715

(DNH/TWD), 2021 WL 12314320, at *6 (N.D.N.Y. July 20, 2021) (citing Baumann v.

Walsh, 36 F.Supp.2d 508, 512 (N.D.N.Y. 1999); see also Banks v. No. 8932 Corr. Officer,

No. 11-CV-8359 (LAP), 2013 WL 673883, at *4 (S.D.N.Y. Feb. 25, 2013) (“A prison guard's

deliberate indifference to a serious medical need of a prisoner means intentionally

denying or delaying access to medical care or intentionally interfering with medical

treatment once it was prescribed.”).

As stated above, Plaintiff alleges that his nephew struck him twice in the leg with

a sledgehammer. See Dkt. No. 1 at 5. However, as presently alleged, Plaintiff fails to

show that his “medical need was a condition of urgency, one that may produce death,

degeneration, or extreme pain.” Savatxath, 2018 WL 8755515, at *18 (quoting Johnson,

412 F.3d at 403); Oter’, 2024 WL 808774, at *5 (quoting Johnson, 412 F.3d at 403 (quoting

Hemmings, 134 F.3d at 108); see also Rodriguez v. Mercado, No. 00-CV-8588 (JSR/FM),

2002 WL 1997885, at *8 (S.D.N.Y. Aug. 28, 2002) (collecting cases and explaining that,

inter alia, pain from a “foot fracture, bone cyst, and degenerative arthritis” has been held

“| not to be “sufficiently serious”); Henderson v. Doe, No. 98-CV-5011 (WHP), 1999 WL

378333, at *2-3 (S.D.N.Y. June 10, 1999) (holding that a broken finger is not sufficiently

serious to plausibly allege a claim of deliberate medical indifference). Plaintiff does not

allege any facts in support of the objective prong. At most, Plaintiff alleges that he told

“Ordway about [his] leg” and requested to go to the hospital, and Ordway told him he “was

fine” and “will be fine.” Dkt. No. 1 at 5. Without further detail, Plaintiff fails to satisfy the

objective element of his medical indifference claim.

Plaintiff also fails to allege facts sufficient to satisfy the subjective prong — that

Ordway acted intentionally or recklessly in delaying his access to medical care. See

Atutis, 2021 WL 12314320, at *6 (citing Baumann, 36 F.Supp. 2d at 512). Similar to the

objective prong analysis, there are no allegations that plausibly suggest that at the time

of his interaction with Ordway, Ordway was aware, either by being told or otherwise, that

m| Plaintiff was suffering from a life-threatening and fast-degenerating condition, or that by

taking him to the Warren County Jail and not the hospital as plaintiff requested, Ordway

was deliberately indifferent to a serious medical need. The facts alleged in the complaint,

at most, establish that plaintiff reported being hit in the leg with a sledgehammer and

asked to go to the hospital. See Dkt. No. 1 at 5. From plaintiff's allegations, Ordway did

not observe the incident, the scene where it occurred, or any injury to plaintiff's leg, but

Ordway did observe the plaintiff walking around. See id. Without more detail, these

allegations fail to establish the subjective prong or that Ordway acted intentionally or

recklessly in delaying plaintiff access to medical care. See Atutis, 2021 WL 12314320, at

*6 (citing Baumann, 36 F.Supp.2d at 512).

In addition, Plaintiff states that one week after his interaction with Ordway, he was

“Vin significant pain and suffered swelling and bruising to his shin and a ten inch by ten inch

“deep black and purple bruise” to his thigh. See Dkt. No. 1 at 5. Yet, plaintiff fails to allege

how his conditions worsened as a result of Ordway’s decision to forego taking him the

hospital, nor when, by whom, or what treatment he received during the week between his

arrest and the filing of the complaint. See Banks, No. 11 CIV. 8359 (LAP), 2013 WL

673883, at *4 (S.D.N.Y. Feb. 25, 2013) (“Plaintiff failed to raise any fact that would suggest

Defendants disregarded the well-being of the Plaintiff in any way.”); Hamilton v.

Westchester Dep't of Corr., No. 19-CV-3838 (KMK), 2020 WL 4271709, at *7 (S.D.NLY.

July 23, 2020) (determining that the defendants did not delay the plaintiff's access to

medical care when the plaintiff slipped and fell, plaintiff requested to be put on a stretcher,

and the defendants “instead stood him up, handcuffed him, and walked him to a chair,

where his vitals were taken.”) (internal quotation marks omitted).

tri Accordingly, the undersigned recommends that plaintiff's Fourteenth Amendment

deliberate medical indifference claim against Ordway® be dismissed without prejudice and

3 Additionally, as stated above, plaintiff claims that X-rays were taken of his leg at the Warren County CF.

See Dkt. No. 1 at 5. Even affording plaintiff due solicitude, this statement is not sufficient to raise a claim

for deliberate medical indifference against any person at the Warren County CF. Plaintiff has failed to name

any individual(s) employed by the Warren County CF as a defendant or allege that that individual(s) acted

with a reckless or intentional state of mind. See Oteri, 2024 WL 808774, at *5; see also Pierrot v. Hahn,

No. 9:15-CV-1415 (DNH/CFH), 2017 WL 4221117, at *9 (N.D.N.Y. July 28, 2017), report and

recommendation adopted, No. 9:15-CV-1415 (DNH/CFH), 2017 WL 4221072 (N.D.N.Y. Sept. 21, 2017)

(“[T]o bring a claim for [deliberate] indifference to medical needs, plaintiff must identify the medical staff

against whom he seeks to bring the claim.”); see a/so FED. R. Civ. P. 8(a)(2) (Stating that a pleading which

with opportunity to amend. See Savatxath, 2018 WL 8755515, at *18 (quoting Johnson,

412 F.3d at 403); Oteri, 2024 WL 808774, at *5 (quoting Johnson, 412 F.3d at 403 (quoting

Hemmings, 134 F.3d at 108)); Atutis, 2021 WL 12314320, at *6 (citing Baumann, 36

F.Supp.2d at 512.

3. Official Capacity

Plaintiff's complaint alleges that Ordway works for the Warren County Sheriff's

Department. See Dkt. No. 1 at 2. The Warren County Sheriff's Department is a municipal

entity.4 Although plaintiffs complaint sets forth no claims against the municipality, out of

special solicitude, the undersigned makes note that if plaintiff intends to proceed against

Ordway pursuant to section 1983 in his official capacity as a sheriff with Warren County

Sheriff's Department, it may only be pursuant to Monell v. Department of Social Services.

“Municipalities may be sued directly under [Section] 1983” pursuant to Monell v.

Department of Social Services, 436 U.S. 658 (1978) “for constitutional deprivations

inflicted upon private individuals pursuant to governmental custom, policy, ordinance,

regulation, or decision.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (citing

Monell, 436 U.S. at 690-91). “To set forth a cognizable claim for municipal liability under

§ 1983, a plaintiff must plead that a deprivation of his constitutional rights was ‘caused by

m| a governmental custom, policy, or usage of the municipality.” Dougal v. Lewicki, No. 1:23-

CV-1167 (DNH/CFH), 2023 WL 6430586, at *10 (N.D.N.Y. Oct. 3, 2023), report and

recommendation adopted, 2023 WL 7013384 (N.D.N.Y. Oct. 25, 2023) (quoting Jones v.

sets forth a claim for relief shall contain, among other things, “a short and plain statement of the claim

showing that the pleader is entitled to relief.”); Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999) (“The

purpose [of Federal 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.”).

4 Warren County, New York, “Sheriff” https:/Avww.warrencountyny.gov/sheriff (last visited May 6, 2026).

10

Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell, 436 U.S. at 690-91)).

“Municipalities may only be held liable when the municipality itself deprives an individual

of a constitutional right; it ‘may not be held liable on a theory of respondeat superior.” /d.

(quoting Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000)). An “official policy or custom”

can be pleaded as follows:

(1) a formal policy officially endorsed by the municipality; (2) actions taken

by government officials responsible for establishing municipal policies

related to the particular deprivation in question; (3) a practice so consistent

and widespread that it constitutes a ‘custom or usage’ sufficient to impute

constructive knowledge of the practice to policymaking officials; or (4) a

failure by policymakers to train or supervise subordinates to such an extent

that it amounts to ‘deliberate indifference’ to the rights of those who come

in contact with the municipal employees.

Id. (quoting Dorsett-Felicelli, Inc. v. Cty. of Clinton, 371 F. Supp. 2d 183, 194 (N.D.N.Y.

2005)) (internal citations omitted); see also Santos v. New York City, 847 F. Supp. 2d 573,

576 (S.D.N.Y. 2012) (explaining that, to state an official policy claim under Monell, the

plaintiff “must do more than simply state that a municipal policy . . . exists”); Coleman v.

Cnty. of Suffolk, 685 F. App’x 69, 72 (2d Cir. 2017) (summary order) (“Where . . . the

conduct of individual defendant officers does not violate the plaintiffs constitutional rights,

the municipality is generally not liable for a policy or practice pursuant to which the

conduct was performed.”); Fleming v. City of New York, No. 18-CV-4866 (GBD/JW), 2023

tt

WL 1861223, at *1 (S.D.N.Y. Feb. 9, 2023) (noting that, in some situations, a municipality

may be held liable under Monell even if a plaintiff is unable to establish liability against

individual defendants).

Here, plaintiff has not pled that his constitutional rights were violated due to an

official Warren County policy, a persistent and widespread custom or practice, failure to

train or supervise, or because a policy-making official’s deliberate conduct deprived him

11

of a constitutional right. See Dougal, 2023 WL 6430586, at *10 (quoting Dorsett-Felicelli,

Inc., 371 F. Supp. 2d at 194); see also Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297-98

(2d Cir. 2020). Instead, plaintiff summarily concludes that his rights were violated

because Ordway refused to address his medical needs or take him to the hospital. See

Dkt. No. 1 at 5. However, as discussed above, “a municipality may not be held liable

“under 1983 ‘solely because it employs a tortfeasor.’” Mulqueen v. Herkimer Cnty. Child

Protective Servs., No. 6:22-CV1-301 (TJM/ATB), 2023 WL 4931679, at *6 (N.D.N.Y. Aug.

2, 2023), report and recommendation adopted, No. 6:22-CV-1301 (BKS/MJK), 2024 WL

756833 (N.D.N.Y. Feb. 23, 2024) (citing Cowan v. City of Mt. Vernon, 95 F. Supp. 3d 624,

636 (S.D.N.Y. 2015) (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997))):

Dougal, 2023 WL 6430586, at *10 (quoting Jeffes, 208 F.3d at 56). Plaintiff does not

connect Ordway’s conduct to Warren County.

Therefore, it is further recommended that if plaintiff intended to name Ordway in

his official capacity, such claims be dismissed for failure to plead a Monell claim. See

Dougal, 2023 WL 6430586, at *10 (quoting Dorsett-Felicelli, Inc., 371 F. Supp. 2d at 194).

Accordingly, as it is possible that plaintiff may have intended to raise his claim against

Ordway in his official capacity and he potentially be able to amend his complaint to plead

m|that his constitutional rights were violated due to an official Warren County policy,

persistent and widespread custom or practice, a failure to train or supervise, or because

a policy-making official’s deliberate conduct deprived him of constitutional rights, the

undersigned recommends that plaintiff's claims against Ordway, to the extent it was

intended to be raised against him in his official capacity, be dismissed without prejudice

and with opportunity to amend.

12

IV. Leave to Amend

Generally, “[a] pro se complaint should not be dismissed without the Court granting

leave to amend at least once when a liberal reading of the complaint gives any indication

that a valid claim might be stated.” Romano v. Lisson, 711 F. App’x 17, 19 (2d Cir. 2017)

(summary order) (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quotation

omitted)). “However, if the problems with a complaint are ‘substantive’ rather than the

result of an ‘inadequately or inartfully pleaded’ complaint, an opportunity to re-plead would

be ‘futile’ and ‘should be denied.” Edwards v. Penix, 388 F. Supp. 3d 135, 144-45

(N.D.N.Y. 2019) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).

Here, the defects in plaintiffs (1) Fourteenth Amendment deliberate medical

indifference claim against Ordway in his individual capacity, and (2) claims against

Ordway in his official capacity can potentially be cured by a better pleading. Accordingly,

it is recommended that insofar as plaintiff seeks to proceed against Ordway in his

individual capacity for violating his Fourteenth Amendment rights and in his official

capacity generally, such claims be dismissed without prejudice and with opportunity to

amend.

IV. Conclusion

WHEREFORE, for the reasons set forth herein, it is hereby

ORDERED, that plaintiffs application to proceed in forma pauperis (Dkt. No. 2) is

GRANTED; and it is

RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) be DISMISSED without

prejudice and with opportunity to amend; and it is further

13

RECOMMENDED, that, if the District Judge adopts this Report-Recommendation

& Order, plaintiff be afforded thirty (30) days from the filing date of the Order adopting the

Report-Recommendation & Order, to file an amended complaint, and if plaintiff: (1) timely

files an amended complaint, it be returned to the Magistrate Judge for review in

accordance with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b); and (2) does not

timely file an amended complaint, the matter be closed and judgment entered dismissing

the matter without prejudice, without need for further order of the Court; and it is

ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order

on plaintiff in accordance with Local Rules.

IT IS SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within which

file written objections to the foregoing report. Such objections shall be filed with the

Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14)

DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85,

89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir.

1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 6(a), 72.°

Dated: May 6, 2026

Albany, New York

/

Paul J. Evangelista

U.S. Magistrate Judge

5 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three

(3) additional days will be added to the fourteen-day (14) period, meaning that you have seventeen (17)

days from the date the Report-Recommendation and Order was mailed to you to serve and file objections.

See FED.R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday,

then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.

See id. § 6(a)(1)(c).

14