Alston

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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JESSE ALSTON,

Plaintiff,

MEMORANDUM AND ORDER

- against – 24 Civ. 6444 (NRB)

NEW YORK CITY DEPARTMENT OF

CORRECTION, NEW YORK STATE

DEPARTMENT OF CORRECTIONS AND

COMMUNITY SUPERVISION, AMERICAN

AIRLINES GROUP INC., AMERICAN

EAGLE AIRLINES, NEW YORK CITY

HEALTH AND HOSPITALS

CORPORATION, JANE DOE #1 in her

official capacity, JANE DOE #1

in her individual capacity,

JOHN DOE #1 in his official

capacity, JOHN DOE #1 in his

official capacity, and JOHN

DOES #2-5,

Defendants.

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NAOMI REICE BUCHWALD

UNITED STATES DISTRICT JUDGE

Plaintiff Jesse Alston (“plaintiff”) brings this action

against defendants New York City Department of Correction (“DOC”),

New York State Department of Corrections and Community Supervision

(“DOCCS”), New York City Health and Hospitals Corporation (“HHC”),

Jane Doe #1 in her official and individual capacities, John Doe #1

in his official and individual capacities, John Does #2-5, American

Airlines Group Inc., and American Eagle Airlines,1 seeking monetary

damages and alleging that, while being transported to and

subsequently held in custody at Rikers Island, he was deprived of

medical treatment and accommodations in violation of federal and

state law.

Presently before the Court is DOCCS’s motion to dismiss

plaintiff’s Amended Complaint pursuant to Rules 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure.2 DOCCS contends,

inter alia, that: (i) plaintiff’s claims pursuant to 42 U.S.C. §

1983, the Americans with Disabilities Act (“ADA”), and New York

common law are barred by Eleventh Amendment sovereign immunity;

and (ii) even absent sovereign immunity, plaintiff’s claims under

Section 1983 fail because DOCCS is not a “person” within the

1 During an initial teleconference with the parties, the Court sought an

explanation as to why American Airlines Group Inc. and American Eagle Airlines

had not appeared in this action. At the Court’s request, plaintiff’s counsel

represented that he would follow up. The Court acknowledges that plaintiff’s

counsel filed an affidavit of service from a process server in September 2024

which neither contained the title of the individual served nor a description of

the individual’s job responsibilities. ECF No. 15. However, the absence of

any appearance by either American Airlines Group Inc. or American Eagle Airlines

raises questions as to whether the process server served an individual

authorized to accept service on behalf of those entities. In any event, there

is no indication that plaintiff’s counsel pursued his claims against those

defendants. For example, plaintiff never sought a default in the years

following the filing of this action in August 2024. Accordingly, American

Airlines Group Inc. and American Eagle Airlines are dismissed, as any further

attempt to serve them would be untimely given that more than three years have

passed since the events underlying this action occurred.

2 HHC and DOC each moved to dismiss plaintiff’s Amended Complaint. ECF

Nos. 42, 51. Separate opinions, also filed today by this Court, address the

individual motions filed by HHC and DOC.

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meaning of the statute. For the reasons stated herein, the Court

grants DOCCS’s motion to dismiss.

I. Factual Background3

a. Plaintiff’s Travel to Virginia

Plaintiff is formerly incarcerated individual who, after

being convicted of offenses including robbery, criminal possession

of a weapon, and grand larceny, was incarcerated in New York State

prisons for approximately 18 years beginning in 1998. AC ¶ 13.

On May 26, 2016, plaintiff was released from custody and placed on

parole by the New York State Division of Parole. Id. ¶ 14. While

walking on a Brooklyn sidewalk in December 2019, plaintiff, a

diabetic, stepped on a nail, resulting in a chronic infection that

eventually required the amputation of his right foot in March 2020.

Id. ¶ 15. The infection persisted despite the amputation, and in

July 2021, plaintiff traveled to Charlottesville, Virginia to

obtain medical treatment. Id. ¶¶ 16-17. Plaintiff was admitted

to the University Medical Center in Charlottesville on July 31,

2021, where he underwent a second amputation, resulting in the

removal of his right leg below the knee. Id. ¶ 18.

3 The following facts are drawn from the Amended Complaint, ECF No. 32

(“AC”), and are assumed true for purposes of resolving the instant motion.

Stadnick v. Vivint Solar, Inc., 861 F.3d 31, 35 (2d Cir. 2017).

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Rather than returning to New York by the same means he had

used to travel to Virginia, plaintiff instead contacted DOCCS

“and/or a Magistrate Judge” in August 2021 to surrender in

connection with a parole violation arising from his failure to

notify his parole officer that he had left New York. Id. ¶ 19.

Plaintiff waived his right to contest extradition from Virginia to

New York. Id. ¶ 20. He was discharged from University Medical

Center on August 11, 2021, and detained in a Virginia jail until

August 24, 2021, when New York parole officers, defendants Jane

Doe #1 and John Doe #1, arrived to facilitate his return to New

York. Id. ¶ 21.

a. Plaintiff’s Transport to New York

Jane Doe #1 and John Doe #1 accompanied plaintiff to Richmond

International Airport, where he was to be transported to New York

on a flight operated by defendants American Airlines Group, Inc.

and American Eagle Airlines. Id. ¶ 22. Upon arrival, plaintiff

was provided with, and handcuffed to, a wheelchair. Id. ¶ 23.

Because he could not use a wheelchair inside the aircraft and was

not provided with crutches, plaintiff was required to hop down the

aisle to his seat in the last row. Id. ¶ 24. After landing at

LaGuardia Airport, plaintiff again traversed the aisle by hopping.

Id. ¶ 25. Plaintiff lost his balance, fell, and landed on his

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recently amputated right leg. Id. He experienced sharp, internal

pain and heard a popping sound. Id. Plaintiff informed Jane Doe

#1 that he believed he was injured and requested medical

assistance. Id. ¶ 26. Jane Doe #1 stated that she did not see

any visible blood on his right leg. Id. Upon exiting the aircraft,

plaintiff was placed in a wheelchair and transported out of the

airport. Id. ¶ 27. Plaintiff, still in pain, was transferred to

a halfway house in Queens, New York for approximately four hours

before being transported to Rikers Island (“Rikers”). Id.

b. Plaintiff’s Detention at Rikers Island

Upon arrival at Rikers, plaintiff complained of severe pain

stemming from his fall. Id. ¶ 28. At some point over the next

four days, plaintiff’s recently amputated right leg became

increasingly red, swollen, and painful, and he requested to be

taken to the hospital. Id. ¶ 29. Defendants John Does #2-5, HHC

medical personnel serving inmates and pre-trial detainees at

Rikers Island, rewrapped his bandages and assured him that no

serious issue was present. Id. ¶¶ 11, 29. On August 28, 2021,

plaintiff was transferred to Bellevue Hospital, one of the

hospitals within HHC’s network. Id. ¶ 30. Three days later, on

August 31, 2021, he underwent a third amputation, this time of his

left leg, due to “extensive infection and gangrene.” Id. ¶¶ 30-

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31. The surgeon, Dr. William Johnson, allegedly stated that

plaintiff’s condition worsened due to delayed medical

intervention. Id. ¶ 31.

Plaintiff remained hospitalized until September 10, 2021.

Id. ¶ 32. Diagnostic imaging revealed significant vascular issues,

including arterial occlusions that contributed to poor healing.

Id. ¶ 33. Plaintiff was treated for several conditions, including

wound infections, anemia, and “complications from uncontrolled

diabetes.” Id. ¶ 32. Laboratory testing showed elevated white

blood cell counts and high C-reactive protein levels indicative of

infection and inflammation. Id. ¶ 34.

As alleged, the amputation of plaintiff’s left leg was

necessitated by advanced infection and the risk of systemic spread.

Id. ¶ 35. Upon discharge, plaintiff was prescribed medications

including gabapentin, morphine, oxycodone, and tetracycline. Id.

¶ 36. His discharge plan included follow-up care at a vascular

surgery clinic and physical therapy. Id. ¶ 37. Plaintiff alleges

ongoing medical needs, as well as continuing pain, psychological

distress, and physical limitations arising from the loss of his

left leg. Id. ¶¶ 37-38. Plaintiff advances no allegations of any

mistreatment following the surgery at Bellevue.

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II. Procedural Background

Plaintiff filed his original complaint on August 26, 2024.

ECF No. 1. HHC answered on September 24, 2024. ECF No. 20. That

same day, DOC requested an extension until November 7, 2024, to

answer or otherwise respond to plaintiff’s complaint, which the

Court granted. ECF Nos. 22, 25. On September 25, 2024, DOCCS

requested a pre-motion conference for a proposed motion to dismiss

plaintiff’s complaint, and DOC made a similar request on November

7, 2024. ECF Nos. 24, 29. Plaintiff responded to the requests

from DOCCS and DOC on November 13, 2024. ECF No. 30. On December

17, 2024, HHC also requested a pre-motion conference for a proposed

motion to dismiss plaintiff’s complaint. ECF No. 31.

On January 9, 2025, the Court held a teleconference with the

parties, permitting DOCCS, DOC, and HHC to make their motions and

granting plaintiff leave to file an amended complaint by February

6, 2025. The Court also directed the parties to propose a briefing

schedule in which no more than 60 days would elapse between motions

and replies.

Plaintiff filed his Amended Complaint on February 5, 2025,

asserting the following causes of action: (i) violations of the

Americans with Disabilities Act (“ADA”); (ii) deliberate

indifference to his medical needs, in violation of the Fourteenth

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Amendment’s Due Process and Equal Protection Clauses; (iii)

negligent hiring and retention; (iv) violations of his

constitutional rights as guaranteed under 42 U.S.C. § 1983,

including the Fourth and Fourteenth Amendments; and (v) failure to

intervene. ECF No. 32. After the parties failed to agree on a

briefing schedule, ECF Nos. 36, 37, the Court set one on February

24, 2025. ECF No. 39. In accordance with that schedule, HHC filed

its motion to dismiss, ECF No. 42, along with an accompanying

memorandum of law, ECF No. 47 (“HHC Mot.”), and declaration in

support thereof, ECF No. 43, on March 17, 2025. DOCCS filed its

motion to dismiss, ECF No. 48, and accompanying memorandum of law,

ECF No. 49 (“DOCCS Mot.”), on March 24, 2025. The next day, DOC

filed its motion to dismiss, ECF No. 51, and accompanying

memorandum of law, ECF No. 53 (“DOC Mot.”). Plaintiff opposed the

motions filed by DOCCS and DOC on May 6, 2025. ECF Nos. 56 (“Pl.

DOCCS Opp.”), 57 (“Pl. DOC Opp.”). DOCCS and DOC filed reply

memoranda in support of their respective motions on May 22, 2025.

ECF Nos. 58 (“DOCCS Reply”), 59 (“DOC Reply”).

On December 19, 2025, after realizing that plaintiff had never

filed an opposition to HHC’s motion, originally due in May 2025,

the Court directed plaintiff to do by January 6, 2026. ECF No.

62. Plaintiff complied with that direction. ECF No. 64 (“Pl. HHC

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Opp.”). HHC filed its reply on January 16, 2026. ECF No. 70 (“HHC

Reply”).

This opinion addresses only DOCCS’s motion.

III. Legal Standard

a. Rule 12(b)(1)

A motion to dismiss pursuant to Rule 12(b)(1) must be granted

when a district court lacks the constitutional or statutory power

to adjudicate a claim. Morrison v. Nat’l Australia Bank Ltd., 547

F.3d 167, 170 (2d Cir. 2008). A plaintiff has the burden of

establishing subject matter jurisdiction by a preponderance of the

evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir.

2000). While the Court “must accept as true all material factual

allegations in the complaint,” J.S. ex rel. N.S. v. Attica Cent.

Schs., 386 F.3d 107, 110 (2d Cir. 2004), “jurisdiction must be

shown affirmatively, and that showing is not made by drawing from

the pleadings inferences favorable to the party asserting it,”

Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.

1998).

b. Rule 12(b)(6)

To survive a motion to dismiss under Rule 12(b)(6), a

plaintiff must plead sufficient factual allegations “to state a

claim to relief that is plausible on its face.” Bell Atl. Corp.

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v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially

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.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). While the Court accepts the truth of the pleaded

facts, it is “not bound to accept as true a legal conclusion

couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 555.). “Threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do

not suffice.” Brown v. Daikin Am., Inc., 756 F.3d 219, 225 (2d

Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

DISCUSSION

DOCCS moves to dismiss plaintiff’s Amended Complaint pursuant

to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil

Procedure. Before proceeding to the merits of that motion, the

Court makes two preliminary observations. First, the Amended

Complaint largely fails to plead claims on a defendant-specific

basis. In particular, the first, second, and fourth causes of

action – asserting violations of the ADA, the Fourteenth Amendment,

and 42 U.S.C. § 1983 – are directed broadly at “Defendants” and do

not reference problematic conduct attributable to any particular

defendant. Second, DOCCS’s motion seeks only its own dismissal

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and does not specifically address claims as asserted against

unidentified defendants Jane Doe #1 and John Doe #1, alleged to be

state parole officers employed by DOCCS.

DOCCS argues that Eleventh Amendment sovereign immunity bars

each of the following categories of plaintiff’s claims against it:

(i) those arising under Section 1983; (ii) those arising under the

ADA; and (iii) those arising under New York common law.

Accordingly, the Court addresses each category of claim in turn.4

I. Sovereign Immunity Bars Plaintiff’s Section 1983 Claims

Plaintiff’s second and fourth causes of action assert claims

pursuant to Section 1983 and allege that defendants deprived

plaintiff of his federal constitutional rights by denying him

medical treatment and accommodations. AC ¶¶ 44-49, 54-55.

Plaintiff’s fifth cause of action asserts a failure to intervene

claim against all defendants. Id. ¶¶ 56-57. DOCCS maintains that

4 Whether sovereign immunity arguments are properly brought under Rule

12(b)(6) or 12(b)(1) remains unsettled in this Circuit. See Ripa v. Stony Brook

Univ., 808 F. App’x 50, 50 n.1 (2d Cir. 2020) (“Whether Eleventh Amendment

immunity constitutes a true issue of subject matter jurisdiction or is more

appropriately viewed as an affirmative defense has not been decided by the

Supreme Court or [the Second Circuit].”) (internal citations and quotation marks

omitted). DOCCS invokes Rule 12(b)(1) as the sole ground for dismissal in its

notice of motion but also cites Rule 12(b)(6) in the accompanying memorandum.

DOCCS Mot. at 5. Practically, the distinction is without a difference: under

either subdivision, the Court considers “only the pleadings and the relevant

state and federal law and has drawn all inferences in Plaintiff’s favor.”

Harrison v. New York, 95 F. Supp. 3d 293, 313 n.6 (E.D.N.Y. 2015) (internal

citation and quotation marks omitted).

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these claims are all barred by Eleventh Amendment immunity. DOCCS

Mot. at 5-8.

The Eleventh Amendment bars suits by individuals against a

state or state agency in federal court without that state’s

consent. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261,

267-68 (1997); Caruso v. Zugibe, 646 F. App’x 101, 104 (2d Cir.

2016). The Eleventh Amendment likewise bars suits for damages

against state officials acting in their official capacities.

Kentucky v. Graham, 473 U.S. 159, 169 (1985). Accordingly, a state

may not be sued in federal court unless: (i) it waived its

immunity; (ii) Congress has validly abrogated that immunity

pursuant to Section 5 of the Fourteenth Amendment; or (iii) a

plaintiff seeks prospective injunctive relief against a state

official in his or her official capacity for an ongoing

constitutional violation. See Gollump v. Spitzer, 568 F.3d 355,

366 (2d Cir. 2009); Mary Jo C. v. N.Y. State & Local Ret. Sys.,

707 F.3d 144, 152 (2d Cir. 2013).

None of those exceptions is applicable here. New York has

not waived its Eleventh Amendment immunity to suit in federal

court, and it is well-established that Congress did not abrogate

that immunity through Section 1983. Trotman v. Palisades

Interstate Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977); Will v.

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Michigan Dept. of State Police, 491 U.S. 58, 66 (1989) (“Congress,

in passing § 1983, had no intention to disturb the States’ Eleventh

Amendment immunity[.]”); see also Quern v. Jordan, 440 U.S. 332,

338-39 (1979). As an arm of the state, DOCCS “stands in the same

position as the state of New York” and shares New York’s immunity.

Santiago v. New York State Dep’t of Corr. Servs., 945 F.2d 25, 28

n.1 (2d Cir. 1991).

Conceding that he is not entitled to monetary relief on his

Section 1983 claims,5 plaintiff nevertheless attempts to avoid

dismissal by invoking the exception for prospective equitable

relief. Plaintiff argues that the Amended Complaint “seeks

equitable relief” and that state parole officers “should never

again treat a disabled person that is in their custody, in the

same manner they treated Plaintiff.” Pl. DOCCS Opp. at 12-14.

That argument fails. The Amended Complaint does not seek any form

of prospective injunctive relief. The word “injunctive” appears

only once, in the boilerplate request that the Court “[g]rant

injunctive relief as the Court deems just and proper.”6 AC at 12.

The pleading otherwise contains no allegations supporting a

5 See Pl. DOCCS Opp. at 13 (admitting that “Plaintiff may not be entitled

on his non-ADA claims to money damages from the DOCCS[.]”).

6 The words “injunction,” “enjoin,” or “equitable” do not appear anywhere

in the Amended Complaint.

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request for prospective relief, nor does it identify any ongoing

violation. Plaintiff may not cure this glaring deficiency through

his opposition brief. Ciment v. TransUnion, LLC, 2025 WL 307871,

at *7 (S.D.N.Y. Jan. 27, 2025) (“[I]t is well-settled that a

plaintiff cannot amend [his] complaint by asserting new facts or

theories for the first time in opposition to a motion to dismiss.”)

(internal quotation marks and citations omitted).

Accordingly, plaintiff’s second, fourth, and fifth causes of

action against DOCCS, explicitly or implicitly brought pursuant to

Section 1983, are barred by the Eleventh Amendment.7

II. Plaintiff Fails to State a Claim Under the ADA

Plaintiff’s first cause of action arises under Title II of

the ADA. AC ¶¶ 39-43. Plaintiff alleges that despite being aware

of his disability, DOCCS failed to provide appropriate

accommodations during his transport from Virginia to New York.

Id. DOCCS argues that sovereign immunity bars this claim and that,

7 The Court notes that Section 1983 does not create substantive rights but

provides “only a procedure for redress for the deprivation of rights established

elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). To state a

cognizable claim under Section 1983, a plaintiff must allege that (i) a person

deprived the plaintiff of a federal right, and (ii) that person acted under

color of state law. Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005). As a state

agency, DOCCS is not a “person” within the meaning of Section 1983 and therefore

may not be sued under that statute. Purnell v. Dep’t of Corr. & Cmty.

Supervision, 2018 WL 6435901, at *2 (N.D.N.Y. Dec. 7, 2018). Accordingly, even

if DOCCS were not entitled to sovereign immunity, plaintiff’s Section 1983

claims against it would nonetheless fail.

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in any event, plaintiff fails to allege facts supporting

discriminatory animus or ill will based on plaintiff’s disability.

DOCCS Mot. at 9-11. Plaintiff responds that Congress validly

abrogated DOCCS’s sovereign immunity under the ADA, permitting

monetary relief. Pl. DOCCS Opp. at 7-12.

As discussed, a state (and by extension, DOCCS) cannot be

sued in federal court unless the state has waived its immunity or

Congress has validly abrogated that immunity. See, e.g., Gollump,

568 F.3d at 366. Congress may abrogate a state’s sovereign

immunity if it seeks to enforce the “substantive guarantees” of

the Fourteenth Amendment. Tennessee v. Lane, 541 U.S. 509, 518

(2004). With respect to the ADA, the Supreme Court has held that

“insofar as Title II creates a private cause of action for damages

against the States for conduct that actually violates the

Fourteenth Amendment, Title II validly abrogates state sovereign

immunity.” United States v. Georgia, 546 U.S. 151, 159 (2006).

Under that framework, the Court considers: (i) which aspects of

DOCCS’s alleged conduct violate the ADA; (ii) the extent to which

that conduct also violates the Fourteenth Amendment; and (iii)

insofar as the conduct violates the ADA but not the Fourteenth

Amendment, whether Congress’s purported abrogation of sovereign

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immunity as to that class of conduct is nevertheless valid. Id.

at 159.

If plaintiff satisfies the first two prongs, the Eleventh

Amendment does not bar a claim for monetary damages under the ADA

against DOCCS. If, however, plaintiff alleges ADA violations that

do not violate the Fourteenth Amendment, the Court proceeds to the

third prong. See, e.g., Colón v. New York State Dep’t of Corr. &

Cmty. Supervision, 2017 WL 4157372, at *6 (S.D.N.Y. Sep. 15, 2017)

(explaining that a plaintiff must show a violation of the ADA and

a violation of the Fourteenth Amendment or satisfaction of the

third Georgia prong to overcome sovereign immunity). Thus,

although Eleventh Amendment issues are typically resolved at the

outset, where a plaintiff “fails to allege an actionable ADA

violation,” questions of sovereign immunity are irrelevant and

need not be reached. Id. The Court therefore turns to the merits

of plaintiff’s ADA claim against DOCCS.

To state a prima facie ADA discrimination claim, a plaintiff

must allege that: (i) the plaintiff is a qualified individual with

a disability; (ii) defendant is a public entity subject to the

ADA; and (iii) the plaintiff is being excluded from participation

in, or being denied the benefits of, a service, program, or

activity offered by defendant, or was otherwise discriminated

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against by reason of his or her disability. Wright v. New York

State Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016). To determine

whether a plaintiff is a qualified individual with a disability,

the ADA defines disability to include, inter alia, “a physical or

mental impairment that substantially limits one or more major life

activities.” Hamilton v. Westchester Cnty., 3 F.4th 86, 92 (2d

Cir. 2021) (citation omitted). A plaintiff may proceed under

theories of intentional discrimination (disparate treatment),

disparate impact, or failure to make a reasonable accommodation.

Brooklyn Ctr. for Psychotherapy Inc. v. Phila. Indem. Ins. Co.,

955 F.3d 305, 311 (2d Cir. 2020). Under Title II, a defendant

discriminates when it fails to make a reasonable accommodation

that would permit a qualified disabled individual “to have access

to and take a meaningful part in public services and public

accommodations.” Powell v. Nat’l Bd. Of Med. Exam’rs, 364 F.3d

79, 85 (2d Cir. 2004).

As alleged here, when DOCCS became involved in his transport

from Virginia to New York, plaintiff was an amputee, clearly and

substantially impairing his ability to walk. AC ¶ 22.

Unquestionably, walking constitutes a major life activity, and

plaintiff has plausibly alleged the first element of a claim under

Title II. Reeves v. Johnson Controls World Servs., Inc., 140 F.3d

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144, 155 (2d. Cir. 1998) (holding that “seeing, hearing, or

walking” are treated by Second Circuit precedents as “major life

activities per se[.]”). Likewise, it is well-established that

DOCCS is a public entity subject to the ADA. Wright, 831 F.3d at

72. The Court accordingly focuses on the third element of

plaintiff’s prima facie case: whether he was denied the opportunity

to participate in or benefit from defendant’s services, programs,

or activities, or was otherwise discriminated against by defendant

because of his disability. Henrietta D. v. Bloomberg, 331 F.3d

261, 272 (2d Cir. 2003).

The Amended Complaint’s ADA theory rests on a single, narrow

allegation: that DOCCS, through Jane Doe #1 and John Doe #1, failed

to provide plaintiff with a wheelchair or crutches on the flight

from Virginia to New York, requiring him to hop up and down the

aisle while boarding and deplaning. AC ¶ 42. That allegation

fails to state a claim under Title II. To begin, the Amended

Complaint contains no allegations that plaintiff was excluded

from, denied access to, or otherwise deprived of any “service[],

program[], or activit[y]” provided by DOCCS, as required by the

ADA. Wright, 831 F.3d at 72. Nor does plaintiff allege that he

sought to participate in any such service, program, or activity,

or that he was otherwise denied access to one by reason of his

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disability. Id.; see also Henrietta D., 331 F.3d at 273-75

(requiring denial of meaningful access to public service).

Instead, plaintiff alleges only that he was not provided a

particular assistive service, namely a wheelchair or crutches,

during a discrete aspect of his transport. That allegation,

without more, does not plausibly plead exclusion from or denial of

any identifiable DOCCS program or service, nor does it support a

reasonable inference that any such denial occurred “by reason of”

plaintiff’s disability. McElwee v. Cnty. of Orange, 700 F.3d 635,

640 (2d Cir. 2012) (requiring that exclusion be “by reason of” a

disability). Further, the Amended Complaint does not allege that

plaintiff was denied access to a wheelchair or assistive device

because of his disability, or that such equipment was removed or

withheld for discriminatory reasons. To the contrary, plaintiff

alleges that he used a wheelchair outside the aircraft, both before

boarding and after deplaning. AC ¶ ¶ 23, 27. These allegations

further undermine any inference of discriminatory exclusion or

denial of access within the meaning of the ADA. Shomo v. Dep’t of

Corr. & Cmty. Supervision, 2022 WL 1406726, at *13 (S.D.N.Y. May

4, 2022) (“[T]hese claims fail because Plaintiff does not allege

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that he was discriminated against because of his disability, as is

required by [the ADA].”).

Courts routinely dismiss ADA claims premised on alleged

deficiencies in the manner in which services were provided, rather

than the denial of access to those services, where, as here,

plaintiff does not identify any program or activity from which he

was excluded. See, e.g., Elbert v. New York State Dep’t of Corr.

Servs., 751 F. Supp. 2d 590, 596 (S.D.N.Y. 2010) (distinguishing

between inadequate medical treatment and actionable ADA

discrimination). At most, plaintiff’s allegations concern the

adequacy of accommodations provided during transport, which is

not, without more, actionable under Title II. Accordingly,

plaintiff fails to state a claim against DOCCS under the ADA.

III. Sovereign Immunity Bars Plaintiff’s Negligent Hiring and

Retention Claim

Plaintiff’s third cause of action asserts that DOCCS was

negligent in retaining and hiring employees who were unfit for

their positions, leading to plaintiff’s injuries. AC ¶¶ 50-53.

DOCCS maintains that this claim is likewise barred Eleventh

Amendment sovereign immunity. DOCCS Mot. at 7-8. Plaintiff does

not address this argument in his opposition papers. In any event,

because sovereign immunity “absolutely bars a federal court from

reviewing any state law claim . . . against state agencies and

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officials,” absent waiver or abrogation, plaintiff’s negligent

hiring and retention claim is dismissed. Roddini v. City

University of New York, 2003 WL 435981, at *3 (S.D.N.Y. Feb. 21,

2003).

IV. Because Plaintiff Cannot Amend His Amended Complaint to

Add the Names of Jane Doe #1 and John Doe #1, Any Claims

Against Them Are Dismissed

Largely without specifics, the Amended Complaint names Jane

Doe #1 and John Doe #1, allegedly state parole officers employed

by DOCCS, as defendants in their individual and official

capacities. AC at 1; ¶¶ 7-8. In New York, claims under Section

1983 are governed by a three-year statute of limitations. Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 79 (2d Cir. 2015).

The misconduct alleged by plaintiff occurred in 2021. AC ¶ 22.

Five years later, plaintiff has neither identified nor served the

state parole officers who allegedly facilitated his transport from

Virginia to New York. Because a failure to “identify and serve

John Doe defendants within the statute of limitations is fatal to

claims against them,” plaintiff’s claims against Jane Doe #1 and

John Doe #1 are time-barred as a matter of law. Aniades v. New

York State Div. of Parole, 2023 WL 4421877, at *13 (S.D.N.Y. July

10, 2023) (citing Barrow v. Wethersfield Police Dep’t, 66 F.3d

466, 468 (2d Cir. 1995)).

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Leave to amend would be futile. Any second amended complaint

naming the Doe defendants would not relate back because plaintiff

has not shown that the Doe defendants received notice of the action

or knew, or should have known, that the action would have been

brought against them but for a mistake concerning identity. See

Fed R. Civ. P. 15(c)(1)(C); see also Barrow, 66 F.3d at 468

(holding that lack of knowledge of a defendant’s identity, as in

case of Doe defendants, is not a “mistake” for purposes of Rule

15). Accordingly, plaintiff’s claims against Jane Doe #1 and John

Doe #1, to the extent they are asserted in their individual and

official capacities, are dismissed.

CONCLUSION

For the foregoing reasons, DOCCS’s motion to dismiss

plaintiff’s claims is granted. The Clerk of Court is respectfully

directed to terminate the motion pending at ECF No. 48. Further,

given that the motions pending at ECF Nos. 42 and 51 will also be

terminated, and given that defendants American Airlines Group Inc.

and American Eagle Airlines are dismissed, the Clerk of Court is

also directed to close this case.

Dated: March 17, 2026

New York, New York 2 |

NAOMI REICE BUCHWALD wl

UNITED STATES DISTRICT JUDGE

af Se