Marsh

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

ALICIA MARSH,

Plaintiff,

v. MEMORANDUM & ORDER

25-CV-5520 (HG) (LKE)

HEALTHFIRST HEALTH PLAN, et al.,

Defendants.

HECTOR GONZALEZ, United States District Judge:

Pro se Plaintiff Alicia Marsh commenced this action on September 29, 2025. See ECF

No. 1 (Complaint).1 On November 5, 2025, the Court granted Plaintiff’s request to proceed in

forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915 and dismissed the Complaint for failure to

state a claim and with leave to amend. See ECF No. 8 (Dismissal Order). Plaintiff amended her

complaint on December 5, 2025, see ECF No. 9 (First Amended Complaint, “FAC”), and again

on April 25, 2026, see ECF No. 12 (Second Amended Complaint, “SAC”).2 For the reasons

stated below, the action is DISMISSED.

1 Unless otherwise indicated, when quoting cases and Plaintiff’s complaint, the Court

omits all internal quotation marks, alteration marks, emphases, footnotes, and citations. The

Court refers to the pages assigned by the Electronic Case Files system (“ECF”).

2 By filing the SAC, the FAC became moot. See Shields v. Citytrust Bancorp, Inc., 25

F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily

supersedes the original, and renders it of no legal effect.”).

BACKGROUND3

Plaintiff is a Medicaid beneficiary who has Type 1 diabetes and requires daily insulin.

This action arises from her unsuccessful attempt to refill a prescription for a specific brand of

insulin injections, Tresiba, on October 1, 2024. See generally SAC.

A. Original Complaint

The original complaint named New York State agencies, private organizations, and their

employees as defendants. Plaintiff alleged that these entities and individuals delayed her access

to her medication for a four-day period in October 2024, leading her to experience serious

medical complications in February 2025. See ECF No. 1 at 2. She alleged that Defendants’

temporary denial and delay in providing her medication violated the Medicaid Act, 42 U.S.C.

§ 1396a(a)(8); Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132;

unspecified constitutional rights; and various provisions of New York State law. See ECF No. 1

at 3. Plaintiff requested more than $5 million in damages, declaratory relief, and an injunction

“requiring Defendants to ensure uninterrupted insulin access.” Id. at 4. The Court dismissed

Plaintiff’s complaint because she failed to state a claim against any of the private defendants, and

the named New York State agencies had sovereign immunity. See ECF No. 8 at 3–7.

B. Second Amended Complaint

The SAC drops Plaintiff’s claims against state agencies and names an individual state

actor, the Commissioner of the New York State Department of Health, and additional private

3 The Court “recite[s] the substance of the allegations as if they represented true facts, with

the understanding that these are not findings of the [C]ourt, as [I] have no way of knowing at this

stage what are the true facts.” In re Hain Celestial Grp., Inc. Sec. Litig., 20 F.4th 131, 133 (2d

Cir. 2021).

entities and their employees. Nevertheless, the SAC fails to address the principal deficiencies of

the original complaint.

Plaintiff alleges that on September 30, 2024, she requested a refill of her Tresiba

prescription from her medical provider, who then contacted the pharmacy and confirmed the

prescription. See SAC ¶ 51; ECF No. 12-1 at 9 (SAC Exhibits). The following evening, when

Plaintiff arrived at Walgreens Pharmacy #21349, she was informed that prior authorization was

required to fill the prescription due to a change in her insurance coverage. See SAC ¶ 52; ECF

No. 12-1 at 9. Plaintiff contacted her insurer, Healthfirst Health Plan, Inc. (“Healthfirst”), and

New York’s Medicaid Pharmacy Program, NYRx, to request an emergency override, but they

refused to provide an emergency override and “continued to subject Plaintiff to administrative

delays.” See SAC ¶¶ 54–55, 66. Although Plaintiff received insulin within four days, it was not

the Tresiba brand that she preferred. See ECF No. 12-1 at 10–11.

The SAC names eight defendants: (i) Healthfirst, a private health insurer that contracts

with New York state to offer health coverage for Medicaid-eligible individuals; (ii) Prime

Therapeutics LLC (“Prime”), a private pharmacy benefits manager that partners with private

insurers and with NYRx; (iii) Walgreens Boots Alliance, Inc. (“WBA”); (iv) Walgreens

Pharmacy #21349 in Queens (“Walgreens”), the pharmacy where Plaintiff sought to refill her

prescription; (v) Tiffany Li, the manager of Walgreens; (vi) Lili, a Healthfirst employee whose

last name is unknown; (vii) Henry, a Walgreens pharmacist whose last name is unknown

(together with the preceding six Defendants, collectively referred to as the “Private

Defendants”); and (viii) James V. McDonald, in his official capacity as the Commissioner of the

New York State Department of Health (“McDonald”) . See SAC ¶¶ 10–17.

Plaintiff alleges that Defendants’ failure to grant an emergency override and promptly

dispense her medicine violated the Medicaid Act, 42 U.S.C. § 1396a(a)(8); Title II of the ADA,

42 U.S.C. § 12132; Section 504(a) of the Rehabilitation Act, 29 U.S.C. § 794; the due process

clause of the Fourteenth Amendment, U.S. Const. amend. XIV; and constituted negligence under

New York State law. Plaintiff seeks at least $25 million in damages, among other relief. See

SAC at 22–23.

LEGAL STANDARD

A complaint must plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim is plausible ‘when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d

Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations

contained in a complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.”

Iqbal, 556 U.S. at 678.

A pro se complaint “must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Harris v. Mills, 572

F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, courts “remain obligated to construe

a pro se complaint liberally”). A district court shall review an IFP action and dismiss where it

finds that the action “(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).

DISCUSSION

II. Section 1983 Claims

None of Plaintiff’s claims brought under § 1983 for alleged violations of the due process

clause or the Medicaid Act survive dismissal.

A. Private Defendants

Section 1983 provides a cause of action when the harm was “committed by a person

acting under color of state law,” and the action “deprived [the plaintiff] of rights, privileges, or

immunities secured by the Constitution or laws of the United States.” Cornejo v. Bell, 592 F.3d

121, 127 (2d Cir. 2010). Although Plaintiff alleges that “Defendants acted under color of state

law in administering Medicaid pharmacy benefits,” SAC ¶ 18, the Private Defendants are private

actors to whom § 1983 does not apply. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 50–51 (1999) (“[T]he under-color-of-state-law element of § 1983 excludes from its reach

merely private conduct, no matter how discriminatory or wrongful[.]”).4

As the Court has already explained to Plaintiff, see ECF No. 8 at 5–6, a private entity

does not become a state actor merely because it performs under a state contract, accepts state or

federal funds, or is subject to state regulation. See Cranley v. Nat’l Life Ins. Co. of Vt., 318 F.3d

105, 112 (2d Cir. 2003) (“A finding of state action may not be premised solely on the private

entity’s creation, funding, licensing, or regulation by the government.”); Rendell-Baker v. Kohn,

4 Plaintiff incorrectly claims that Health and Hospital Corp. v. Talevski, 599 U.S. 166

(2023), permits Medicaid beneficiaries to “enforce federal rights through 42 U.S.C. § 1983

against both state actors and private contractors performing delegated governmental functions.”

SAC ¶ 19. But the holding in that case was far narrower. Talevski merely affirmed nursing

home residents’ right to enforce the Federal Nursing Home Reform Act against county-run

nursing homes; it did not broadly extend § 1983 liability to private contractors. See Talevski,

599 U.S. at 172. In any event, the SAC does not allege that any of the Private Defendants were

performing delegated government functions, much less plead facts sufficient to make such an

allegation plausible.

457 U.S. 830, 841 (1982) (“Acts of such private contractors do not become acts of the

government by reason of their significant or even total engagement in performing public

contracts.”); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974) (“The mere fact that

a business is subject to state regulation does not by itself convert its action into that of the

State.”).

Moreover, “[a] defendant is not a state actor simply because it participated in Medicare

and Medicaid programs.” Houston v. Highland Care Ctr., Inc., No. 23-cv-8186, 2024 WL

638721, at *2 (E.D.N.Y. Jan. 26, 2024); see also Veldhuis v. Geico Gen. Ins. Co., No. 22-cv-

1042, 2023 WL 319576, at *4 (D. Conn. Jan. 19, 2023) (“The Supreme Court has rejected an

argument that a private insurance company constitutes a ‘state actor’ for purposes of § 1983

simply because the insurance company is subject to state regulation.”). “[A] private insurer’s

decision to withhold payment for disputed medical treatment is not an action fairly attributable to

the State such as to make the private insurer a state actor for the purpose of Section 1983

liability.” Holmes v. Health First, No. 22-cv-6683, 2022 WL 4134700, at *2 (S.D.N.Y. Sept. 8,

2022). “Accordingly, while private companies frequently administer health benefits and

insurance plans, providing health insurance (even if funded by the government) does not

transform a private health-insurance provider into a state actor.” Id.

Plaintiff has provided no basis for finding that any of the private defendants acted on

behalf of the state or that the state was responsible for their conduct. See, e.g., Umeze v. New

York State Dep’t of Health, No. 24-cv-7425, 2025 WL 2733451, at *9 (S.D.N.Y. Sept. 25, 2025)

(dismissing § 1983 claims against Healthfirst because the plaintiff failed to plausibly allege that

the State was responsible for Healthfirst’s specific conduct). The Court therefore dismisses

Plaintiff’s claims under § 1983 against the Private Defendants for failure to state a claim on

which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).

B. Defendant McDonald

Plaintiff’s § 1983 claims against Defendant McDonald are also dismissed. As

Commissioner of the New York State Department of Health (“NYSDOH”), he is immune from

suit for damages. The Court has already explained to Plaintiff that the state’s Eleventh

Amendment immunity applies to state officials acting in their official capacity. See ECF No. 8 at

3–4; see also, e.g., Coleman v. Beale, 636 F. Supp. 2d 207, 212 (W.D.N.Y. 2009) (“Claims

against state employees in their official capacity are deemed claims against the state itself, and

are barred by the Eleventh Amendment.”). And Plaintiff fails to state a § 1983 claim for any

other relief because the SAC does not allege any personal involvement by him. See Raspardo v.

Carlone, 770 F.3d 97, 115 (2d Cir. 2014) (“If a defendant has not personally violated a plaintiff’s

constitutional rights, the plaintiff cannot succeed on a § 1983 action against the defendant.”);

Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff

must plead that each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.”). Therefore, Plaintiff’s § 1983 claims against McDonald

are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii).

III. Disability Claims

The SAC alleges that Defendants violated Title II of the ADA and Section 504(a) of the

Rehabilitation Act because they “denied Plaintiff meaningful access to medically necessary

services by failing to provide or facilitate access to prescribed insulin during a known medical

emergency.” See SAC ¶¶ 127, 141. Both claims require dismissal.

A. Title II of the ADA

Title II provides that “no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services, programs,

or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132. To state a claim for relief under Title II, Plaintiff must allege facts to plausibly show:

“(1) that she is a qualified individual with a disability; (2) that she was excluded from

participation in a public entity’s services, programs or activities or was otherwise discriminated

against by a public entity; and (3) that such exclusion or discrimination was due to her

disability.” Tardif v. City of New York, 991 F.3d 394, 404 (2d Cir. 2021). She fails to do so.

To start with, Title II does not apply to the Private Defendants. “Title II of the ADA

applies only to public entities.” Green v. City of New York, 465 F.3d 65, 74 (2d Cir. 2006)

(dismissing Title II claim against a private hospital defendant because it was not a public entity

subject to suit); Charles v. City of New York, No. 23-cv-3108, 2026 WL 670174, at *7 (E.D.N.Y.

Mar. 10, 2026) (dismissing Title II claims because “[a]n individual cannot be a public entity”).

Nor does Plaintiff fix the original complaint’s pleading deficiencies for the remaining

Defendant, McDonald. The Court previously dismissed Plaintiff’s Title II claim because the

original complaint failed to allege that Plaintiff was excluded from participation in or denied

benefits or services because of her disability, that she was treated differently from non-disabled

individuals, or that non-disabled individuals had faster access to drugs requiring prior

authorization. See ECF No. 8 at 7. The SAC remains similarly devoid of any factual allegations

plausibly suggesting the causal element, i.e., that McDonald discriminated against Plaintiff

because of her disability. Therefore, Plaintiff’s claims under Title II of the ADA are dismissed

for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

B. Section 504 of the Rehabilitation Act

Section 504(a) of the Rehabilitation Act provides that “[n]o otherwise qualified

individual with a disability . . . shall, solely by reason of her or his disability, be excluded from

the participation in, be denied the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance or under any program or activity

conducted by any Executive agency.” 29 U.S.C. § 794(a). To establish a violation of the

Rehabilitation Act, Plaintiff must show that (1) she is an individual with a disability; (2) she is

otherwise qualified for benefits under a federally funded program; and (3) she has been denied

those benefits solely because of her disability. See Bryant v. New York State Educ. Dep’t, 692

F.3d 202, 216 (2d Cir. 2012). As with the Title II claim, the SAC fails to allege that Plaintiff

was denied any benefits because of her disability. Therefore, the Section 504(a) claim must also

be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

IV. State Law Claims

Having dismissed Plaintiff’s federal claims, the Court declines to exercise supplemental

jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c)(3). “In the usual case

in which all federal-law claims are eliminated before trial, the balance of factors . . . will point

toward declining to exercise jurisdiction over the remaining state-law claims.” Chinniah v.

FERC, 62 F.4th 700, 703 (2d Cir. 2023) (citing Pension Benefit Guar. Corp. ex rel. Saint Vincent

Cath. Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir. 2013)).

CONCLUSION

For the reasons set forth above, all federal claims in the SAC, filed IFP, are DISMISSED

with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). See ECF No. 12. Any state law claims

are DISMISSED without prejudice. The Court denies Plaintiff leave to amend. See Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (explaining that where the problem with a complaint

is “substantive[,] better pleading will not cure it” and leave to amend should be denied as futile).

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not

be taken in good faith, and therefore IFP status is denied for purpose of an appeal. See Coppedge

v. United States, 369 U.S. 438, 444–45 (1962). The Clerk of Court is respectfully directed to

enter judgment, close this case, and mail a copy of this Order to pro se Plaintiff and note the

mailing on the docket.

SO ORDERED.

/s/ Hector Gonzalez

HECTOR GONZALEZ

United States District Judge

Dated: Brooklyn, New York

May 21, 2026