Campbell

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

DEVON CAMPBELL,

Plaintiff,

Case # 25-CV-06155-FPG

v.

DECISION AND ORDER

DOMINICA PIAZZA, et al.,

Defendants.

INTRODUCTION

Pro se Plaintiff Devon Campbell brings this action against Defendants Dominica Piazza,

Danielle Glebocki, Karen Crowley, Stacey Galloway, Daniel F. Martuscello, in their personal

capacities, and Securus Technologies, LLC (“Securus Technologies”). Plaintiff alleges that

Defendants violated his rights by failing to accommodate his hearing disability. See ECF No. 25.

Plaintiff brings three causes of action pursuant to 42 U.S.C. § 1983, alleging: (1) discrimination

based on disability in violation of § 504 of the Rehabilitation Act against all Defendants; (2)

discrimination based on disability in violation of Title II of the Americans with Disabilities Act

(“ADA”) and the Fourteenth Amendment against all Defendants; and (3) violation of the Eighth

Amendment against Defendants Piazza, Glebocki, Crowley, Galloway, and Securus Technologies.

Id. at 8–10 ¶¶ 31–39.

On October 21, 2025, Piazza, Glebocki, Crowley, Galloway, and Martuscello moved to

dismiss Plaintiff’s claims pursuant to the Federal Rule of Civil Procedure (“Rule”) 12(b)(6). ECF

No. 23. On November 26, 2025, Securus Technologies also moved to dismiss Plaintiff’s claims

pursuant to Rule 12(b)(6). ECF No. 27. Plaintiff opposes both motions. ECF No. 37.1 For the

1 Plaintiff refers to Defendants’ motions both as motions for summary judgment and motions to dismiss. ECF No. 37.

However, Defendants only filed motions to dismiss. ECF Nos. 23, 27. Additionally, no party filed a Rule 12(d)

1

reasons that follow, the motion to dismiss by Piazza, Glebocki, Crowley, Galloway, and

Martuscello is GRANTED. Securus Technologies’ motion to dismiss is also GRANTED.

LEGAL STANDARD

Rule 12(b)(6) provides that a party may move to dismiss a complaint for “failure to state

a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In reviewing a Rule 12(b)(6)

motion, a court must “draw all reasonable inferences in Plaintiff[’s] favor.” Faber v. Metro. Life

Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011). To survive a motion to dismiss, a complaint must contain

sufficient factual material, accepted as true, 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 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The application of this standard is “a context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.” Id. at 679.

“The Second Circuit has recognized that this plausibility standard governs claims brought

even by pro se litigants.” Robles v. Bleau, No. 07-CV-0464, 2008 WL 4693153, at *5 (N.D.N.Y.

Oct. 22, 2008) (emphasis and citations omitted). However, the Court remains mindful that “[a]

document filed pro se is to be liberally construed and a pro se complaint, however inartfully

pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Boykin

v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (quotation marks and citation omitted).

motion, “which requires a court to convert a motion under Rule 12(b)(6) or 12(c) into a motion for summary judgment

whenever ‘matters outside the pleadings are presented to and not excluded by the court.’” Lively v. WAFRA Inv.

Advisory Grp., Inc., 6 F.4th 293, 302 (2d Cir. 2021) (citing Fed. R. Civ. P. 12(d)). Indeed, there are no supplementary

materials presented to the Court for consideration in this case, let alone to form the “basis for its decision.” Hayden

v. Cnty. of Nassau, 180 F.3d 42, 54 (2d Cir. 1999). Therefore, the Court is “not required to convert [Defendants’

motions] into one[s] for summary judgment,” McCracken v. Verisma Sys., Inc., 91 F.4th 600, 609 (2d Cir. 2024), and

shall review Defendants’ motions as motions to dismiss.

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BACKGROUND

The following facts are derived from Plaintiff’s complaint. See ECF No. 25. Plaintiff is a

deaf individual who is incarcerated by the New York State Department of Corrections and

Community Supervision (“DOCCS”). ECF No. 25 at 3 ¶ 5. DOCCS contracts with Securus

Technologies to provide WiFi tablets to inmates who are not deaf and which can be used to

communicate and speak on the phone without interruption unless the WiFi is shut down. Id. at 1–

2. Securus Technologies also offers “video connect” services that allow families to schedule a

paid session to see and speak with loved ones. Id. at 2.

In 2023, Plaintiff was incarcerated at Sullivan Correctional Facility. Id. at 3 ¶ 6. There,

Plaintiff was provided with a Text Telephone, which Plaintiff refers to as “TTY.” Id. at 5 ¶ 21.

Plaintiff alleges that the TTY had multiple communication problems caused by the relay operator

and was outdated compared to the videophone, which Plaintiff describes is “the newest technology

employed in society.” Id. at 3 ¶ 6; at 5 ¶ 21. Plaintiff complained to Piazza, the Deputy

Superintendent of Programs, to no avail. Id. at 5 ¶ 21. Plaintiff then filed a grievance, requesting

a videophone that would allow him to communicate with his loved ones using sign language. Id.

Plaintiff received a response that stated, “IGRC: Per Investigation and CORC decision,

videophone is not deemed a necessary accommodation at Sullivan. This makes the matter outside

the purview of the IGRC and should be evaluated by the Superintendent.”2 ECF No. 1-1 at 23.3

Plaintiff indicated that he wished to appeal the decision to the Superintendent. Id.

2 “IGRC” refers to the Incarcerated Grievance Resolution Committee and “CORC” refers to the Central Office Review

Committee.

3 “In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider

the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by

reference in the complaint.” United States ex rel. Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021).

3

In 2024, Plaintiff was transferred to Woodbourne Correctional Facility, where he

encountered similar problems with the TTY. ECF No. 25 at 3 ¶ 7. Plaintiff complained to

Glebocki, the Deputy Superintendent of Programs, to no avail, and then filed a grievance related

to the TTY. Id. at 6 ¶ 22. In April 2024, Glebocki replied that he forwarded Plaintiff’s request for

reasonable accommodation for videophone access to “ORC LaForge who will meet with Plaintiff

to begin the review process.”4 ECF No. 1-1 at 26.

Plaintiff was transferred to Wende Correctional Facility, where he encountered the same

problems with the TTY. ECF No. 25 at 6 ¶ 23. Plaintiff addressed his concerns to Crowley, the

Deputy Superintendent of Programs, to no avail, and then filed a grievance about being denied a

video relay service or videophone. Id.

Thereafter, Plaintiff was transferred to Wyoming Correctional Facility, where he

encountered the same problems. Id. at 6 ¶ 24. Plaintiff wrote to Galloway, the Deputy

Superintendent of Programs, about his civil rights violations to no avail; Plaintiff then filed a

grievance to request accommodations to communicate effectively with his loved ones using sign

language. Id. at 6–7 ¶ 24. On an unspecified date, Plaintiff complained to Securus Technologies

to no avail. Id. at 7 ¶ 27.

On March 24, 2025, Plaintiff commenced this action against Piazza, Glebocki, Crowley,

Galloway, and Martuscello, the Commissioner of DOCCS at the time (collectively, “DOCCS

Defendants”), as well as Securus Technologies. ECF No. 1.

DISCUSSION

Plaintiff filed the complaint in this action, asserting claims under 42 U.S.C. § 1983 for: (1)

discrimination based on disability in violation of § 504 of the Rehabilitation Act; (2) discrimination

4 “ORC” refers to Offender Rehabilitation Coordinator.

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based on disability in violation of Title II of the ADA and the Fourteenth Amendment; and (3)

violation of the Eighth Amendment. ECF No. 25. DOCCS Defendants and Securus Technologies

each move to dismiss Plaintiff’s complaint in its entirety pursuant to Rule 12(b)(6) for failure to

state a claim upon which relief can be granted. ECF Nos. 23, 27. Plaintiff opposes both motions.

ECF No. 37. The Court discusses each of Defendants’ arguments below.

I. Violation of § 504 of the Rehabilitation Act

Plaintiff’s first claim under 42 U.S.C. § 1983 for violation of § 504 of the Rehabilitation

Act alleges that his rights were deprived when “DOCCS contracted with Securus Technologies,

and did not implement policies and procedures designed to accommodate plaintiff who is deaf.”

ECF No. 25 at 8–9 ¶¶ 31–33. As an initial matter, “the rights established in the Rehabilitation Act

may not be enforced through § 1983.” Costabile v. New York City Health & Hosps. Corp., 951

F.3d 77, 83 (2d Cir. 2020). However, because Plaintiff is proceeding pro se, the Court construes

his pleading liberally, see Boykin, 521 F.3d at 214, and interprets his claims “to raise the strongest

arguments that they suggest,” Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010) (quotation

marks and citation omitted). Therefore, the Court construes Plaintiff’s first cause of action to claim

a violation of § 504 of the Rehabilitation Act.

Although Plaintiff does not specify which Defendant violated his rights, all Defendants

move to dismiss Plaintiff’s claim. ECF Nos. 23, 27. DOCCS Defendants argue that under the

Rehabilitation Act, individuals sued in their personal capacity cannot be held liable at all, let alone

for money damages. ECF No. 23-1 at 6. Securus Technologies also denies liability because

Plaintiff does not plausibly allege that Securus Technologies receives federal funding to be subject

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to § 504 of the Rehabilitation Act. ECF No. 27-1 at 11–12. Plaintiff does not respond to either

argument.5

The Court first discusses DOCCS Defendants’ argument that they cannot be sued in their

personal capacity under the Rehabilitation Act. The Court agrees. See Rosenfield v. New York

State Div. of Veterans’ Affs., No. 18-CV-1299, 2019 WL 4621962, at *10 (N.D.N.Y. Sept. 24, 2019)

(“It is well recognized in this Circuit that individuals cannot be sued in their personal capacity

under either the ADA or the Rehabilitation Act.”) (collecting cases); Kearney v. N.Y.S., No. 11-CV-

6033, 2011 WL 344755, *1 (W.D.N.Y. Jan. 31, 2011) (“[C]laims under the ADA and [t]he

Rehabilitation Act may not generally be brought against individuals.”). Therefore, Plaintiff cannot

assert a claim under the Rehabilitation Act against DOCCS Defendants.

The Court next turns to Securus Technologies’ argument. “In order to establish a violation

of § 504 of the Rehabilitation Act, a plaintiff must show (1) that he has a disability for purposes of

the Rehabilitation Act, (2) that he is ‘otherwise qualified’ for the benefit that has been denied, (3)

that he has been ‘denied the benefits’ solely by reason of his disability, and (4) that the benefit is

part of a ‘program or activity receiving Federal financial assistance.’” Thomas v. Mohawk Valley

Health Sys., No. 20-CV-01347, 2020 WL 6504634, at *7 (N.D.N.Y. Nov. 5, 2020) (brackets

omitted) (quoting Flight v. Gloeckler, 68 F.3d 61, 63 (2d Cir. 1995)). However, nowhere in the

complaint nor in his opposition does Plaintiff allege that Securus Technologies is a “program or

activity receiving Federal financial assistance.” Id. Plaintiff thus fails to plausibly plead that

Securus Technologies violated his rights under § 504 of the Rehabilitation Act.

Accordingly, Plaintiff’s first cause of action is dismissed.

5 However, due to Plaintiff’s pro se status, the Court will still consider whether the complaint sufficiently alleges a

violation of § 504 of the Rehabilitation Act. See Grimes v. Fremont Gen. Corp., 785 F. Supp. 2d 269, 299 (S.D.N.Y.

2011).

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II. Violation of the ADA and the Fourteenth Amendment

Plaintiff’s second claim under 42 U.S.C. § 1983 for violation of the ADA alleges that all

Defendants deprived him of “his rights under the Equal Protection Clause to the Fourteenth

Amendment . . . when the defendants . . . either did not provide a service requested, or entered into

a contract with a service provider that offered a service,” which excluded plaintiff who has a

disability. ECF No. 25 at 9 ¶ 36.

Similar to the Rehabilitation Act, “[t]o the extent that the Plaintiff seeks to invoke the ADA

in [a] § 1983 claim, that claim fails, because ADA claims are not actionable under Section 1983.”

Laface v. E. Suffolk BOCES, No. 18-CV-1314, 2020 WL 2489774, at *9 (E.D.N.Y. May 14, 2020)

(quotation marks and citation omitted). However, construing Plaintiff’s pleading liberally, see

Boykin, 521 F.3d at 214, and interpreting his claims “to raise the strongest arguments that they

suggest,” Harris, 607 F.3d at 24, the Court finds Plaintiff to be raising two discrimination claims:

(1) a violation of the ADA, and (2) a violation of the Equal Protection Clause of the Fourteenth

Amendment under 42 U.S.C. § 1983.

The Court analyzes each claim below.

A. Violation of the ADA

All Defendants move to dismiss Plaintiff’s ADA claims. ECF No. 23-1 at 6; ECF No. 27-

1 at 12–14. Plaintiff did not respond to Defendants’ arguments. The Court will discuss each

argument.

First, DOCCS Defendants move to dismiss Plaintiff’s claim, arguing that under the ADA,

individuals sued in their personal capacity cannot be held liable at all, let alone for money damages.

ECF No. 23-1 at 6. The Court agrees as “[i]t is well recognized in this Circuit that individuals

cannot be sued in their personal capacity under either the ADA or the Rehabilitation Act.”

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Rosenfield, 2019 WL 4621962, at *10; see Kearney, 2011 WL 344755, *1. Therefore, Plaintiff’s

ADA claims against DOCCS Defendants are dismissed.

Next, Securus Technologies moves to dismiss Plaintiff’s claim, arguing that it cannot be

liable because it is neither a public entity, an “instrumentality” of a state, or a local government

under Title II of the ADA.6 ECF No. 27-1 at 12–13. Title II of the ADA “proscribes discrimination

against the disabled in access to public services.” Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009)

(citation omitted). To plead a violation of Title II, a plaintiff must allege “(1) that [he] is a qualified

individual with a disability; (2) that [he] 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 [his] disability.” Fulton v. Goord, 591 F.3d 37,

43 (2d Cir. 2009) (internal quotation marks and citation omitted). “Private entities are not subject

to the provisions of Title II even if they receive government funding.” Brennan v. NCAComp Inc.,

No. 22-CV-0127, 2022 WL 4290660, at *7 (N.D.N.Y. Apr. 25, 2022) (citation omitted), report and

recommendation adopted, No. 22-CV-0127, 2022 WL 3097843 (N.D.N.Y. Aug. 4, 2022).

Plaintiff failed to plausibly allege that Securus Technologies is subject to Title II.

Specifically, Plaintiff fails to allege that Securus Technologies is a “public entity,” Fulton, 591 F.3d

at 43, as he concedes that Securus Technologies is a private entity, ECF No. 37 at 7. However, a

private entity cannot be subject to Title II. See Brennan, 2022 WL 4290660, at *7. Therefore,

Plaintiff fails to state a claim regarding a violation of Title II of the ADA against Securus

Technologies.

Accordingly, Plaintiff’s ADA claim is dismissed.

6 Securus Technologies also argues that it is not subject to Title III of the ADA as it does not own, lease, or operate a

public accommodation. ECF No. 27-1 at 13–14. Nowhere does Plaintiff mention Title III or make any allegations

related to offering a public accommodation in his complaint or opposition. See ECF Nos. 1, 25, 37. Because the

Court does not construe Plaintiff’s complaint to be alleging a violation of Title III, this argument is disregarded.

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B. Violation of the Fourteenth Amendment Under § 1983

DOCCS Defendants move to dismiss Plaintiff’s claim under § 1983 for violation of the

Fourteenth Amendment. ECF No. 23-1 at 4–6. DOCCS Defendants argue that Plaintiff failed to

allege their personal involvement, a prerequisite to assert a § 1983 claim. Id. Securus

Technologies also denies liability under § 1983 because it is not a state actor and has no personal

involvement in the violation of Plaintiff’s rights. ECF No. 27-1 at 14–18. Plaintiff disagrees with

DOCCS Defendants, arguing that they were personally involved in depriving Plaintiff of his

constitutional rights, especially because Plaintiff filed grievances asking for accommodation for

his disability in every correctional facility where he was housed. ECF No. 37 at 1–7. Plaintiff

also argues that Securus Technologies is a state actor because it is “entwined” with the government

and because “the government has outsourced one of its constitutional obligations to [it].” Id. at 8–

9.

“To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged

conduct (1) was attributable to a person acting under color of state law, and (2) deprived the

plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States.”

Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997). “Section 1983 itself creates no

substantive rights; it provides only a procedure for redress for the deprivation of rights established

elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted).

i. DOCCS Defendants

To establish liability against a prison official under § 1983, a plaintiff must allege that

individual’s personal involvement in the alleged constitutional violation; it is not enough to claim

that the defendant is a link in the prison’s chain of command. See Ayers v. Coughlin, 780 F.2d 205,

210 (2d Cir. 1985). Therefore, “a plaintiff must plead and prove that each Government-official

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defendant, through the official’s own individual actions, has violated the Constitution.” Tangreti

v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quotation marks and citation omitted).

1. Defendant Martuscello

Plaintiff alleges that Martuscello violated his rights as the “chief executive officer of the

overall affairs of [DOCCS], and as such, ma[de] decisions as to how the Department will operate,

and the program and services on which the department will operate off of.” ECF No. 25 at 7 ¶ 25.

Plaintiff’s claim relies solely on Martuscello’s position within DOCCS’ hierarchy. Plaintiff thus

appears to be alleging that Martuscello is liable under the theory of respondeat superior. However,

the theory of respondeat superior is not available in a § 1983 action. See Hernandez v. Keane, 341

F.3d 137, 144 (2d Cir. 2003) (“[S]upervisor liability in a § 1983 action depends on a showing of

some personal responsibility, and cannot rest on respondeat superior.”). “In other words,

supervisory officials may not be held liable merely because they [hold] a position of authority.”

Felix-Torres v. Graham, 687 F. Supp. 2d 38, 54 (N.D.N.Y. 2009) (citation omitted). Therefore, the

claim against Martuscello is dismissed.

2. Defendants Glebocki, Crowley, and Galloway

Plaintiff alleges that after being denied devices that allowed video services at Woodbourne,

Wende, and Wyoming Correctional Facilities, he addressed his concerns and subsequently filed

grievances to Glebocki, Crowley, and Galloway, respectively. ECF No. 25 at 6–7 ¶¶ 22–24.

Plaintiff argues that these Defendants violated his rights by failing to “remedy the wrong” despite

learning that Plaintiff’s rights were violated. ECF No. 37 at 2. Plaintiff further submits Glebocki’s

response to his complaint, which acknowledges receipt of Plaintiff’s request and states that the

“request was forwarded to ORC LaForge who will meet with [Plaintiff] to begin the review

process.” ECF No. 1-1 at 26.

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“[I]n general[,] personal involvement will not be found unless the supervisor’s response is

detailed and specific.” Brooks v. Chappius, 450 F. Supp. 2d 220, 226 (W.D.N.Y. 2006) (quotation

marks and citation omitted); see Mateo v. Fischer, 682 F. Supp. 2d 423, 430–31 (S.D.N.Y. 2010)

(“A supervisor’s detailed, specific response to a plaintiff’s complaint suggests that the supervisor

has considered the plaintiff’s allegations and evaluated possible responses.”). Otherwise, “merely

writing letters and grievances to a defendant” or the defendant’s “receipt of a letter or grievance,

without personally investigating or acting on the letter or grievance, is insufficient to establish

personal involvement.” Romano v. Weinstock, No. 17-CV-0137, 2018 WL 5728064, at *11

(N.D.N.Y. May 30, 2018), report and recommendation adopted, No. 17-CV-0137, 2018 WL

4299984 (N.D.N.Y. Sept. 10, 2018); see Brooks, 450 F. Supp. 2d at 226 (“[T]he fact that an official

ignored a letter alleging unconstitutional conduct is not enough to establish personal involvement.”

(citation omitted)).

Here, Plaintiff included Glebocki’s response, which stated that Glebocki referred Plaintiff’s

letter to someone else. ECF No. 1-1 at 26. This is insufficient to allege personal involvement.

See Vega v. Artus, 610 F.Supp.2d 185, 199 (N.D.N.Y. 2009) (defendant referring plaintiff’s letters

and grievances to staff for investigation was insufficient to establish personal involvement ). For

Crowley and Galloway, Plaintiff alleges that he complained and filed a grievance to each of them.

ECF No. 25 at 6–7 ¶¶ 23–24. However, Plaintiff does not allege that Crowley or Galloway

responded to his complaint or grievance at all, let alone in a way that is “detailed and specific.”

Brooks, 450 F. Supp. 2d at 226. Again, this is insufficient to establish personal involvement. See

id.

Accordingly, Plaintiff’s claim against Glebocki, Crowley, and Galloway is dismissed.

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3. Defendant Piazza

Plaintiff alleges that while he was at Sullivan Correctional Facility, he “spoke with . . .

Piazza[] about accommodating the plaintiff with a videophone” and subsequently filed a grievance.

ECF No. 37 at 4–5; ECF No. 25 at 5 ¶ 21. Plaintiff submits the response he received, which states,

“IGRC: Per Investigation and CORC decision, videophone is not deemed a necessary

accommodation at Sullivan. This makes the matter outside the purview of the IGRC and should

be evaluated by the Superintendent.” ECF No. 1-1 at 23. The document indicates that Plaintiff

disagreed with the conclusion and wished to appeal the decision to the Superintendent. Id.

Even after viewing the facts alleged in the complaint in the light most favorable to Plaintiff,

see Faber, 648 F.3d at 104, the Court concludes that Plaintiff fails to sufficiently allege Piazza’s

personal involvement. Contrary to Plaintiff’s characterization, the response he received was not

from Piazza, but from the IGRC. ECF No. 1-1 at 23. Plaintiff even indicated that he “disagree[d]

with the IGRC response and wish[ed] to appeal to the Superintendent” of Sullivan Correctional

Facility. Id. Moreover, as Plaintiff acknowledges, Piazza was the Deputy Superintendent, not the

Superintendent. ECF No. 25 at 4 ¶ 15. Therefore, it is unclear whether Piazza even received

Plaintiff’s appeal. Compare with Manley v. Mazzuca, No. 01 CIV. 5178, 2004 WL 253314, at *3

(S.D.N.Y. Feb. 10, 2004) (personal involvement sufficiently alleged where defendant

superintendent took no action after receiving plaintiff’s grievance appeal).

The only remaining allegation against Piazza is his failure to respond to Plaintiff’s

complaint about the lack of accommodation for a video device. ECF No. 37 at 5. However, this

alone is insufficient to establish personal involvement. See Brooks, 450 F. Supp. 2d at 226 (“[T]he

fact that an official ignored a letter alleging unconstitutional conduct is not enough to establish

personal involvement.” (citation omitted)). Therefore, the claim against Piazza is dismissed.

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ii. Securus Technologies

The Court next turns to whether Securus Technologies is liable under § 1983. A nominally

private entity can be considered a state actor and held liable under § 1983 where plaintiff alleges

facts to satisfy either: (1) the compulsion test where “the entity acts pursuant to the coercive power

of the state or is controlled by the state”; (2) the close nexus test where “the state provides

significant encouragement to the entity, the entity is a willful participant in joint activity with the

state, or the entity’s functions are entwined with state policies”; or (3) the public function test

where “the entity has been delegated a public function by the state.” Hollander v. Copacabana

Nightclub, 624 F.3d 30, 34 (2d Cir. 2010) (internal quotation marks, emphases, brackets, and

citation omitted).

Here, two doctrines are relevant to Plaintiff’s argument: the close nexus test and the public

function test. ECF No. 37 at 8–9. The Court first discusses the close nexus test. Plaintiff argues

that Securus Technologies is considered a state actor under the close nexus test because “[t]he

state’s entwinement expands to the internal operations and affairs of Securus.” Id. at 9. Under the

entwinement theory that Plaintiff relies on, “state action may exist when a private entity ‘is

entwined with governmental policies, or when government is entwined in its management or

control.’” Grogan v. Blooming Grove Volunteer Ambulance Corps, 768 F.3d 259, 268 (2d Cir.

2014) (citation omitted). “In other words, the entwinement test focuses on the overlap or merger

of public and private entities as a result of their shared leadership or other attributes that make it

hard to separate their public functions from their private ones,” showing a “pervasive entwinement

to the point of largely overlapping identity between the State and the entity.” Popat v. Levy, 328

F. Supp. 3d 106, 129 (W.D.N.Y. 2018) (quotation marks and citations omitted).

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Here, Plaintiff fails to state a claim under the entwinement theory of the close nexus test.

Plaintiff merely states that “[t]he state’s entwinement expands to the internal operations and affairs

of Securus.” ECF No. 37 at 9. However, he does not explain how the two are entwined. Plaintiff’s

conclusory argument is insufficient to allege a “pervasive entwinement to the point of largely

overlapping identity” between DOCCS and Securus Technologies. Popat, 328 F. Supp. 3d at 129;

see also LaMagna v. Brown, 474 F. App’x 788, 790 (2d Cir. 2012) (conclusory allegations that lack

a factual foundation are insufficient to defeat a motion to dismiss). Plaintiff’s argument regarding

the close nexus test against Securus Technologies is therefore dismissed.

The Court next turns to whether Plaintiff plausibly alleged that the public function test is

satisfied. “The public function test is only satisfied when a private entity performed a function

traditionally exclusively reserved to the state.” Cagle v. Weill Cornell Med., No. 22-CV-6951,

2024 WL 3520469, at *7 (S.D.N.Y. July 24, 2024) (citation omitted), aff’d, No. 24-2427, 2025

WL 2790408 (2d Cir. Sept. 30, 2025). The inquiry “focuses not on whether the activity delegated

to the private entity has been regularly performed by governments, but instead on whether the

activity historically has been ‘an exclusive prerogative of the sovereign.’” Grogan, 768 F.3d at

265 (citation omitted).

Here, Plaintiff states that Securus Technologies provides “telephone and video

communications system service[s] . . . for the use of incarcerated individuals.” ECF No. 37 at 5.

However, Plaintiff presents no arguments about how this function has historically been “an

exclusive prerogative of the sovereign.” Grogan, 768 F.3d at 265 (citation omitted). Rather,

Plaintiff merely recites the law by describing the public function test while claiming that “Securus

is a state actor” under the public function test. ECF No. 37 at 8–9. This too is insufficient to defeat

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a motion to dismiss. See LaMagna, 474 F. App’x at 790. Therefore, Plaintiff’s argument regarding

the public function test against Securus Technologies is dismissed.

Accordingly, because Plaintiff has failed to allege that Securus Technologies, a private

entity, can be considered a state actor that can be held liable under 42 U.S.C. § 1983, Plaintiff’s

§ 1983 claim against Securus Technologies is dismissed.

III. Violation of the Eighth Amendment Under § 1983

Plaintiff argues that Piazza, Glebocki, Crowley, Galloway, and Securus Technologies

violated his Eighth Amendment rights under 42 U.S.C. § 1983. ECF No. 1 at 9–10 ¶¶ 37–39.

DOCCS Defendants move to dismiss Plaintiff’s claim, arguing that Plaintiff failed to establish

personal involvement. ECF No. 23-1 at 4–6. Securus Technologies denies liability under § 1983,

arguing that it is not a state actor and has no personal involvement in the violation of Plaintiff’s

rights. ECF No. 27-1 at 14–18. Plaintiff disagrees with DOCCS Defendants, arguing that they

are personally involved because they learned that Plaintiff’s rights were violated through Plaintiff’s

complaints and grievances regarding the lack of accommodation, but failed to remedy the wrong.

ECF No. 37 at 1–7. Plaintiff also disagrees with Securus Technologies, arguing that it is a state

actor as it is “entwined” with the government and because “the government has outsourced one of

its constitutional obligations to [it].” Id. at 8–9.

For the reasons discussed above, see Section II.B.i. supra, Plaintiff fails to plead that

Piazza, Glebocki, Crowley, or Galloway were personally involved in violating his rights as

Plaintiff does not allege that any of these defendants responded to his complaint or grievance in a

“detailed and specific” manner. Brooks, 450 F. Supp. 2d at 226. Therefore, Piazza, Glebocki,

Crowley, or Galloway are not liable under 42 U.S.C. § 1983. Additionally, Securus Technologies

15

is not liable because Plaintiff failed to plausibly allege that Securus Technologies is a state actor

that can be held liable under 42 U.S.C. § 1983. See Section II.B.i. supra.

Therefore, Plaintiff’s Eighth Amendment claim is dismissed.

IV. Leave to Amend

Even though Plaintiff did not request leave to re-plead his claim, the Court believes that

Plaintiff, who is proceeding pro se, should be afforded leave to amend his complaint. Rule 15(a)(2)

directs district courts to give plaintiffs leave to replead “when justice so requires.” Fed. R. Civ. P.

15(a)(2). However, the Second Circuit has declined to allow amendment in cases in which an

additional pleading would be futile. See e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

Because individuals cannot be sued in their personal capacity under either the Rehabilitation Act

or the ADA, amending the complaint to reallege these claims against Piazza, Glebocki, Crowley,

Galloway, and Martuscello would be futile. Likewise, because a private entity such as Securus

Technologies cannot be subject to Title II of the ADA, amending the complaint to reallege that

claim would be futile.

However, it would not be futile for Plaintiff to amend the complaint to re-plead his

remaining claims, namely: (1) discrimination based on disability in violation of § 504 of the

Rehabilitation Act against Securus Technologies, (2) discrimination in violation of the Equal

Protection Clause of the Fourteenth Amendment under 42 U.S.C. § 1983 against all Defendants,

and (3) violation of the Eighth Amendment under 42 U.S.C. § 1983 against Piazza, Glebocki,

Crowley, Galloway, and Securus Technologies. Plaintiff may file a second amended complaint by

October 1, 2026.7

7 In his opposition, Plaintiff alleges a violation of his rights under the New York Constitution, ECF No. 37 at 1, despite

not referring to this argument in his initial complaint. However, “a party may not amend a complaint through an

opposition brief, even when proceeding pro se.” Goldman v. Vox Media, LLC, No. 25-CV-9910, 2026 WL 1802804,

at *1 n.3 (S.D.N.Y. June 23, 2026) (citing Shah v. Helen Hayes Hosp., 252 F. App’x 364, 366 (2d Cir. 2007) (summary

16

CONCLUSION

For the foregoing reasons, the motion to dismiss by Defendants Piazza, Glebocki, Crowley,

Galloway, and Martuscello is GRANTED. Defendant Securus Technologies’ motion to dismiss is

also GRANTED. Plaintiff’s claims for discrimination in violation of § 504 of the Rehabilitation

Act and Title II of the ADA against Defendants Piazza, Glebocki, Crowley, Galloway, and

Martuscello are DISMISSED WITH PREJUDICE. Plaintiff’s claim for discrimination in violation

of Title I] of the ADA against Defendant Securus Technologies is also DISMISSED WITH

PREJUDICE.

Plaintiff may file an amended complaint by October 1, 2026. If Plaintiff does not file an

amended complaint by this date, his claims for (1) discrimination based on disability in violation

of § 504 of the Rehabilitation Act against Securus Technologies, (2) discrimination in violation of

the Equal Protection Clause of the Fourteenth Amendment under 42 U.S.C. § 1983 against all

Defendants, and (3) violation of the Eighth Amendment under 42 U.S.C. § 1983 against

Defendants Piazza, Glebocki, Crowley, Galloway, and Securus Technologies will be dismissed

with prejudice, and the Clerk of Court shall enter judgment and close this case without further

order of the Court.

IT IS SO ORDERED.

Dated: September 1, 2026

Rochester, New York

□□□ —

United States District Court

Western District of New York

order) and then Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998)). Therefore, the Court did not consider

Plaintiff’s arguments of a violation of his rights under the New York Constitution in this decision. However, Plaintiff

may include this clatm when amending his complaint. Additionally, to the extent that Plaintiff wishes to bring his

ADA claim against an appropriate entity, he is free to amend his complaint accordingly.