Petition for Writ of Certiorari — Darrell Gunn, Petitioner v. Frederick N. Berntein, et al.

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Case 22-56, Document 47, 05/26/2022, 3321794, Pagel of 1

S.D.N.Y. - W.P.

19-cv-10039

Seibel, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 26th day of May, two thousand twenty-two.

Present:

Rosemary S. Pooler,

Robert D. Sack,

Alison J. Nathan,

Circuit Judges.

Darrell Gunn,

Plaintiff-Appellant,

22-56 (L),

22-289 (Con)

Frederick N. Bemtein, M.D.,

Fidelity Health Service Director, et al.,

Defendants-Appellees,

Anthony J. Annucci, et al.,

Defendants.

Appellant, pro se, moves for in forma pauperis status and to reverse the dismissal of his suit. This

Court has determined sua sponte that the notice of appeal was untimely filed in the lead appeal,

22-56 (L). Upon due consideration, it is hereby ORDERED that the lead appeal is DISMISSED

for lack of jurisdiction. See 28 U.S.C. § 2107; Bowles v. Russell, 551 U.S. 205, 214 (2007).

It is further ORDERED that the motion is DENIED and the consolidated appeal, 22-289 (Con), is

DISMISSED because it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams,

490 U.S. 319, 325 (1989); see 28 U.S.C. § 1915(e).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DARRELL GUNN,

Plaintiff,

19 CIVIL 10039 (CS)

-against-

JUDGMENT

C.O. ADAM AQUAFREDDA; FREDERICK N.

BERNSTEIN, M.D., F.H.S.D.; VISHWAS BHOPALE,

M.D.; E. BURNETT, Deputy Superintendent for

Security; ROBERT J. COCUZZA, Sergeant; #1 JOHN

DOE, ELMIRA CE.R.T. C.O.; #2 JOHN DOE,

ELMIRA CE.R.T. C.O.; #3 JOHN DOE, ELMIRA

C.E.R.T. C.O.; #4 JOHN DOE, ELMIRA C.E.R.T.

C.O.; #5 JOHN DOE, ELMIRA C.E.R.T. C.O.; #6

JOHN DOE, ELMIRA C.E.R.T. Sergeant; DRAGOON,

Sergeant; CARL J. KOENIGSMANN, M.D., Deputy

Commissioner; PAULINE LONG-KUTOY, Registered

Nurse; C.O. ANTHONY STUETZLE,

Defendants.

■X

It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons

stated in the Court's Opinion and Order dated July 21, 2021, Defendants' motion to dismiss is

GRANTED; accordingly, the case is closed.

Dated: New York, New York

July 21, 2021

RUBY J. KRAJICK

Clerk of Court

BY:

Deputy Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

■x

DARRELL GUNN,

Plaintiff,

- against C.O. ADAM AQUAFREDDA; FREDERICK N.

BERNSTEIN, M.D., F.H.S.D.; VISHWAS

BHOPALE, M.D.; E. BURNETT, Deputy

Superintendent for Security; ROBERT J.

COCUZZA, Sergeant; #1 JOHN DOE, ELMIRA

CE.R.T. C.O.; #2 JOHN DOE, ELMIRA CE.R.T.

C.O.; #3 JOHN DOE, ELMIRA CE.R.T. C.O.; #4

JOHN DOE, ELMIRA C.E.R.T. C.O.; #5 JOHN

DOE, ELMIRA C.E.R.T. C.O.; #6 JOHN DOE,

ELMIRA C.E.R.T. Sergeant; DRAGOON,

Sergeant; CARL J. KOENIGSMANN, M.D.,

Deputy Commissioner; PAULINE LONG-KUTOY,

Registered Nurse; C.O. ANTHONY STUETZLE,

OPINION & ORDER

No. 19-CV--10039 (CS)

Defendants.

■x

Appearances:

Darrell Gunn

Ossining, New York

Pro Se Plaintiff

Jennifer Gashi

Assistant Attorney General

White Plains, New York

Counsel for Defendants

Seibel, J.

Before the Court is the motion to dismiss of Defendants Drs. Frederick Bernstein and

Vishwas Bhopale, Green Haven Correctional Facility Deputy Superintendent E. Burnett,

Sergeant Robert J. Cocuzza, Sergeant Dragoon, Registered Nurse (“RN”) Pauline Long-Kutoy,

Deputy Commissioner of the New York State Department of Corrections and Community

Supervision (“DOCCS”) Carl J. Koenigsmann. M.D., and Correction Officers (“COs”) Anthony

Stuetzle and Adam Aquafredda (collectively, “Defendants”). (Doc. 32.) For the following

reasons, Defendants’ motion is GRANTED.

BACKGROUND

I accept as true the facts, but not the conclusions, set forth in Plaintiffs Second Amended

Complaint, (Doc. 25 (“SAC”)), Amended Complaint, (Doc. 11 (“AC”)), original Complaint,

(Doc. 2 (“OC”)), Affirmation for Timeliness, (Doc. 7 (“Aff.”)), response to Defendants’ pre

motion letter, (Doc. 29), and opposition to Defendants’ motion, (Doc. 35 (“P’s Opp.”)). See

Washington v. Westchester Cnty. Dep’t of Corr., No. 13-CV-5322, 2015 WL 408941, at * 1 n.l

(S.D.N.Y. Jan. 30, 2015) (court may consider facts from pro se plaintiffs original complaint

even if they have not been repeated in amended complaint); Braxton v. Nichols, No. 08-CV8568, 2010 WL 1010001, at *1 (S.D.N.Y. Mar. 18, 2010) (“[A]llegations made in a pro se

plaintiffs memorandum of law, where they are consistent with those in the complaint, may also

be considered on a motion to dismiss.”). i

Facts

Pro se Plaintiff Darrell Gunn is an inmate at Sing Sing Correctional Facility who was

previously incarcerated at Green Flaven Correctional Facility (“Green Haven”). On September

16, 2014, while Green Haven was on lockdown, Defendants C.O. Aquafredda and C.O. Stuetzle

ordered Plaintiff to accompany Stuetzle to the Body Orifice Scanning System (“BOSS”) chair as

Aquafredda searched Plaintiffs cell. (SAC ^fl| 1-2; AC ^ 5; OC

29-30.) Corrections

Emergency Response Team (“C.E.R.T.”) officers from Elmira Correctional Facility (“Elmira”)

The Court will send to Plaintiff copies of all unpublished decisions cited in this Opinion

and Order.

were at Green Haven to assist in conducting cell searches during the lockdown. (SAC f 4; AC T|

7.) While Stuetzle escorted Plaintiff back to his cell, the Elmira C.E.R.T. officers recognized

Plaintiff.2 (SAC H 5; AC f 8.) Plaintiff alleges that the Elmira C.E.R.T. officers stopped

Stuetzle and said the following: “[Tjhere’s GUNN - he’s here now! He’s a piece of shit! Get

him! He got Schieber suspended! ‘GUNN,’you’re a piece of shit! Get him! I wish I was

searching his cell! Get him! ‘GUNN’ is accusing everyone of grabbing his ass.” (SAC H 6; AC

U 9; OC K 34.) Stuetzle replied, “We will take care of it.” (SAC ^ 7; AC ^ 10.)

Plaintiff then observed Aquaffedda searching Plaintiffs cell and reading through

Plaintiffs legal papers. (SAC ^ 9.) Plaintiff states that Aquafredda asked Plaintiff about an

officer named in Plaintiffs legal papers, to which Plaintiff responded, “You’d read my legal

papers. He sexually assaulted me.” (Id.

14-15; AC f 18; OC

42-43.) Aquafredda then

“viciously punched” Plaintiff in the back and in the back of the head while Plaintiff was standing

and facing the wall with both of his hands up against the wall. (SAC

16-18.) Aquafredda

exited Plaintiffs cell, slammed the door, and yelled, “You’re a snitch.” (SAC ^ 20.) Plaintiff

explains that he “was in fear for his life” following the incident. (SAC f 22; AC ^ 25; OC

50.)

A day later, on September 17, 2014, Plaintiff asked for sick call but was informed there

was “no sick[]call available.” (SAC 122; AC U 25; OC U 50.) When Plaintiff went to sick call

on September 18, he was in pain, was unable to move, and had difficulty breathing. (AC f 26;

OC U 51.) Medical staff discovered a bruise on Plaintiffs back. (SAC T[ 23; AC

26; OC ^[51.)

Plaintiff allegedly sustained several injuries from the assault, including a concussion, broken

2 The SAC suggests that Plaintiff was formerly incarcerated in Elmira and that the Elmira

officers recognized him because Plaintiff had filed grievances against correction officers there.

(See SAC

5-6.)

neck, shoulder injury, and back injury, (P’s Opp. at 12), as well as “contussion [sic], [and] loss of

hearing,” (AC % 27).

Plaintiff alleges that Defendant Sergeant Dragoon dismissed Plaintiffs requests to speak

to a doctor. (SAC U 29; AC T[ 32; OC

58-59.) Plaintiff “continued to complain of the pain

and suffering” to Defendant RN Long-Kutoy, but she responded, “There is no doctor on duty.”

(SAC

44; OC ^[ 74.) Dragoon, Long-Kutoy, and Defendant Sergeant Cocuzza made remarks to

Plaintiff to the effect that he would face retribution, including confinement in the Special

Housing Unit, when he tried to report the assault in an ambulatory health report. (SAC ^ 32,

39, 42, 49; AC H 35, 40, 42; OC fflj 61, 67-68.)

Defendant Dr. Bernstein eventually examined Plaintiff and ordered that he be taken to an

outside hospital for further treatment. (SAC ^ 47; AC U 51; OC

77.) Plaintiff asserts that

Defendant Dr. Bhopale failed to provide him with additional treatment oh three separate

occasions in January 2015. (SAC

53-55.) Plaintiff alleges that Bernstein and Bhopale were

deliberately indifferent to Plaintiffs medical needs and “misdiagnose[d]” him by

“misconstru[ing]” two dates. (Id. f 56; see OC K 86.) Plaintiff was also denied sick call “for

unknown reasons” on January 26, 2015, February 2, 2015, February 16, 2015, February 17,

2015, and March 16,2015. (SAC H 57; AC K 61; OC t 87.)

Plaintiff also claims that Defendants Burnett and Koenigsmann failed to supervise their

subordinates and allowed “unconstitutional practices” to occur. (SAC f 62; see id. f 72.)

Plaintiff states that Burnett was “well aware” of surveys published by the Correctional

Association of New York Prison Visiting Project that in 2006 described high rates of reported

retaliation against prisoners who filed grievances at Green Haven, (id. ^ 61), and in 2010

described high rates of reported sexual abuse at Elmira, (id. H 64; see AC H 70). Plaintiff asserts

that, based on the existence of these reports, Burnett knew that his subordinates would act

unlawfully and “failed to stop them from doing so.” (OC ^ 109.) Plaintiff further asserts that on

or about July 23, 2014, Burnett ordered that Plaintiff provide a written statement regarding the

“Elmira sexual assaults and threats,” (SAC U 60), yet failed to protect Plaintiff from “substantial

risk [of] serious harm,” {id. ^ 59). As for Koenigsmann, Plaintiff states that despite being

“informed of the violation” through the 2006 New York Prison Visiting Project report described

above, which raised issues regarding medical care, he “failed to remedy the wrong that the

medical provider was unresponsive to plaintiff’s] medical needs for two days” after the incident.

{Id. 1 72.)

Plaintiff alleges, and Defendants do not dispute, that on March 24, 2015, Plaintiff filed a

grievance with Green Haven regarding the claims outlined in his complaints. {See id. at 21, 37,

49, 55; AC at 14, 28, 39, 44).3 As a result of the injuries Plaintiff sustained from the September

16, 2014 assault, Plaintiff was in physical therapy for more than three years for his shoulder,

neck, and back. (P’s Opp. at 7-8.) Between October 2014 and October 2016, Plaintiff had

twenty medical appointments related to those injuries. {Id. at 8-10). On May 5, 2015,4 Plaintiff

underwent major arthroscopy and acromioplasty distal surgery for his left shoulder injury at

Mount Vernon Hospital. {Id. at 8; Aff. at 4.)

3 The paragraphs describing Plaintiff s grievance in the SAC and AC are unnumbered, so

these citations refer to the page number.

4 On page 3 of his opposition to Defendants’ motion, Plaintiff states that the surgery

occurred on May 5, 2017, but on page 8 he says it was on May 5, 2015. (P’s Opp. at 8.) The

context makes clear that the latter allegation is correct, and the May 5, 2015 date is also set forth

in Plaintiffs Affirmation for Timeliness. {See Aff. at 4.) Citations to page numbers in the

Affirmation for Timeliness refer to the page numbers generated by the Court’s Electronic Filing

System.

Procedural History

-On-October-25, 201-9,-Plaintiff filed suit-against-DQCCS Acting-Commissioner. Anthony

Annucci, Dr. Bernstein, Dr. Bhopale, Burnett, Cocuzza, Dragoon, Green Haven Superintendent

Thomas R. Griffin, Koenigsmann, Long-Kutoy, Green Haven Superintendent William Lee,

Green Haven Deputy Superintendent Lynn Lilley, Captain Thomas Melville, two John Doe

Green Haven C.E.R.T. officers, and six John Doe Elmira C.E.R.T. officers, bringing claims for

damages and injunctive relief under 42 U.S.C. § 1983 for various federal constitutional

violations. (OC at 1-2.)

On January 27, 2020, then-Chief Judge Colleen McMahon issued an order to show cause

why the case should not be dismissed as barred by the statute of limitations. (Doc. 6.) Plaintiff

submitted his “Affirmation for Timeliness,” (Affi), on February 26, 2020.

On April 16, 2020, this Court dismissed with leave to replead Plaintiffs claims against

Annucci, Burnett, Griffin, Koenigsmann, Lee, Lilley, and Melville. (Doc. 9.) On May 28, 2020,

Plaintiff filed an amended complaint against Burnett and Koenigsmann (in addition to Bernstein,

Bhopale, Long-Kutoy, Cocuzza, Dragoon, and the Doe officers). (Doc. 11.) On October 27,

2020, Plaintiff filed a Second Amended Complaint against the same Defendants and naming the

John Doe Green Haven C.E.R.T. officers as C.O. Aquafredda and C.O. Stuetzle. (Doc. 25.)

On November 13, 2020, Defendants filed a letter requesting a pre-motion conference

regarding their intended motion to dismiss the SAC, (Doc. 26), and Plaintiff responded, (Doc.

29.) At the pre-motion conference on December 11, 2020, the Court advised Plaintiff that in his

opposition papers he should provide a better explanation than he had in his letter as to why his

case should not be dismissed on statute of limitations grounds. (Minute Entry dated Dec. 11,

2020.)

Defendants moved to dismiss on January 20, 2021, (Doc. 32; see Doc. 31), arguing that

Plaintiffs complaint is time-barred, that Plaintiff failed to state a viable claim of deliberate

indifference to his medical needs against Defendants Bernstein, Bhopale, and Long-Kutoy, and

that he failed to establish the personal involvement of Defendants Burnett and Koenigsmann in

any constitutional violations, (Doc. 33 (“Ds’ Mem”)). Plaintiff timely submitted his opposition

on February 25, (P’s Opp.), and Defendants submitted their reply memorandum on March 17,

(Doc. 36).

II.

LEGAL STANDARD

. Motion to Dismiss for Failure to State a Claim

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting BellAtl. 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.” Id. “While a

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual

allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do.” Twombly, 550 U.S. at 555 (cleaned up). While Federal Rule of Civil Procedure 8

“marks a notable and generous departure from the hypertechnical, code-pleading regime of a

prior era, ... it does not unlock the doors of discovery for a plaintiff armed with nothing more

than conclusions.” Iqbal, 556 U.S. at 678-79.

In considering whether a complaint states a claim upon which relief can be granted, the

court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not

entitled to the assumption of truth,” and then determines whether the remaining well-pleaded

factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. at 679.

Deciding whether a complaint states a plausible claim for relief is “a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.” Id.

“[Wjhere the well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged - but it has not ‘shown’ - ‘that the pleader is entitled to

relief.”’ Id. (quoting Fed. R. Civ. P. 8(a)(2)) (cleaned up). “[A] complaint does not allege

sufficient facts to suggest that its claim to relief is plausible,” and, thus, “a motion to dismiss

may be granted, where the underlying claim is time barred by a statute of limitations.” Figueroa

v. City ofN.Y., No. 07-CV-l 1333, 2008 WL 4185848, at *1 (S.D.N.Y. Sept. 4, 2008),

reconsideration denied, 2009 WL 10738225 (S.D.N.Y. May 21,2009).

Pro Se Plaintiffs

Complaints made by pro se plaintiffs are to be examined with “special solicitude,”

interpreted “to raise the strongest arguments that they suggest,” Shibeshi v. City ofN.Y., 475 F.

App’x 807, 808 (2d Cir. 2012) (summary order) (cleaned up), and “held to less stringent

standards than formal pleadings drafted by lawyers,” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per

curiam) (cleaned up). Nevertheless, “threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice,” and district courts “cannot invent

factual allegations” that the plaintiff has not pleaded. Chavis v. Chappius, 618 F.3d 162, 170 (2d

Cir. 2010) (cleaned up).

III.

DISCUSSION

Timeliness

Defendants argue that Plaintiffs § 1983 claims should be dismissed because they are

untimely. (Ds’ Mem. at 4-6.) The statute of limitations for a § 1983 action in New York is three

years. Hogan-v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013); Lynch v. Suffolk Cnty. Police Dep't,

Inc., 348 F. App’x 672, 674 (2d Cir. 2009) (summary order). Under federal law, a claim arising

under § 1983 “accrues,” meaning the statute of limitations starts to run, when the plaintiff

“knows or has reason to know of the injury which is the basis of his action.” Pearl v. City of

Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) (cleaned up); see Pinaud v. County of Suffolk, 52

F.3d 1139, 1157 (2d Cir. 1995) (“[Wjhen a plaintiff knows or ought to know of a wrong, the

statute of limitations on that claim starts to run ... .”).

Here, Plaintiff alleges several constitutional violations, all of which occurred more than

three years before Plaintiff brought this action in October 2019: (1) on September 16, 2014,

Stuetzle and Aquafredda assaulted and injured Plaintiff in retaliation for grievances Plaintiff had

filed against various corrections officers, (SAC

1, 16-18); (2) thereafter Dragoon, Cocuzza,

and Long-Kutoy threatened Plaintiff or suggested he would face retribution if he filled out an

ambulatory report indicating that he was assaulted, (see SAC

32, 39, 42, 49); (3) Burnett and

Koenigsmann were “well aware” that their respective subordinates acted unlawfully but failed to

supervise them properly and failed to protect Plaintiff, (SAC lfl| 61-62); and (4) on September 17,

2014 and into 2015, Plaintiff was denied proper medical treatment for injuries he sustained from

the assault, (id.

22, 53-57).5 Because the case was not filed until October 25, 2019, all the

5 Plaintiff argues that “prison staff, defendants and attorney general continued to deny

medical treatment and retaliation for years to come.” (P’s Opp. at 13.) I read this comment to

claims set forth above are thus time-barred under the statute of limitations by close to or more

than two years.

Plaintiff does not dispute that he filed the case more than three years after the relevant

events, but rather invokes the doctrine of equitable tolling, which “allows courts to extend the

statute of limitations beyond the time of expiration as necessary to avoid inequitable

circumstances.” Goodman v. PortAuth. ofN.Y. andN.J., 850 F. Supp. 2d 363, 381 (S.D.N.Y.

2012) (cleaned up). Equitable tolling is applied, however, only in those “rare and exceptional

circumstances[] where a party was prevented from timely performing a required act and where

that party acted with reasonable diligence throughout the period he sought to toll,’” Jones v. City

ofNew York, 846 F. App’x 22, 24 (2d Cir. 2021) (summary order) (cleaned up), and “[t]he

threshold necessary to trigger [it] is very high, lest the exceptions swallow the rule,” Lombardo

v. United States, 860 F.3d 547, 551 (7th Cir. 2017) (cleaned up). It follows that “a litigant

seeking equitable tolling bears the burden of establishing two elements: (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”

Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

The word “prevent” requires the petitioner to demonstrate a causal relationship between

the extraordinary circumstances on which the claim for equitable tolling rests and the

lateness of his filing, a demonstration that cannot be made if the petitioner, acting with

reasonable diligence, could have filed on time notwithstanding the extraordinary

circumstances.

mean that defendants and their counsel continue to deny that there was retaliation or denial of

medical treatment. I do so in part because the comment refers to the lawyers representing

Defendants in this case, in part because Plaintiff does not provide facts describing any lack of

treatment extending years beyond the incident, and in part because by Plaintiffs own account he

got intensive medical care beginning in 2014, including surgery in 2015 and three years of

physical therapy.

Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). Thus, “the link of causation between the

extraordinary circumstances and the failure to file is broken” if the party seeking equitable

tolling has not exercised reasonable diligence in pursuing his rights. Hizbullahankhamon v.

Walker, 255 F.3d 65, 75 (2d Cir. 2001) (cleaned up); see Sanchez v. United States, No. 21-CV1147, 2021 WL 2481836, at *2 (S.D.N.Y. June 17, 2021); Hines v. United States, No. 20-CV10064, 2021 WL 2456679, at *2 (S.D.N.Y. June 16, 2021).

Plaintiff is not entitled to the equitable tolling doctrine because no “extraordinary

circumstance stood in his way.” Watson v. United States, 865 F.3d 123, 132 (2d Cir. 2017).

Such a standard refers to “the severity of the obstacle impeding compliance with a limitations

period.” Id. (cleaned up). Consequently, “it is not enough for a party to show that he

experienced extraordinary circumstances,” but he must also “demonstrate that those

circumstances caused him to miss the original filing deadline.” Id. (emphasis in original)

(cleaned up). The Second Circuit has “set a high bar to deem circumstances sufficiently

‘extraordinary’ to warrant equitable tolling.” Dillon v. Conway, 642 F.3d 358, 363 (2d Cir.

2011) (per curiam).

Here, Plaintiff asks this Court to consider his “handicaps and condition,” (P’s Opp. at 23), and offers several reasons for filing this action late: (1) on May 5, 2015,6 Plaintiff had

arthroscopic surgery for a shoulder injury he sustained from the assault and was in a significant

amount of pain and could not raise his left arm above his shoulder; (2) he was in physical therapy

for over three years and had twenty medical appointments between October 8, 2014 and October

26, 2016; (3) he was denied access to the law library on several dates between May 2016 and

August 2019; (4) corrections officers not named as defendants in this action allegedly

6 See supra note 4.

confiscated and destroyed his legal papers in June 2017; (5) he went on hunger strikes between

June 2017 and August 2017 and again in September 2018 and suffered medical issues arising

from those hunger strikes; (6) he lacked or was denied writing materials at one time in 2016,

again for approximately one week in 2017, and then again after his hunger strike in 2018; and (7)

his eyeglasses were confiscated, and he did not receive new eyeglasses until April 17, 2019,7 {id.

at 3-8, 17-18).

Plaintiff has not presented “exceptional circumstances” warranting equitable tolling.

Several of these incidents - the surgery and medical appointments - lasted only one day.

Plaintiff fails to specifically explain how his medical appointments and physical therapy

prevented him from complying with the statute'of limitations in this case. Similarly, Plaintiff

does not state with any specificity how long he was allegedly denied use of the law library, and

in any event, “restricted access to library facilities does not merit equitable tolling,” Cross v.

McGinnis, No. 05-CV-504, 2006 WL 1788955, at *6 (S.D.N.Y. June 28, 2006), nor does

“limited access to legal assistance,” Francis v. Miller, 198 F. Supp. 2d 232, 235 (E.D.N.Y.

2002). And temporary lack of writing materials for a few months would not prevent filing

within three years. Nor, needless to say, would a voluntary action like a hunger strike - which

by Plaintiffs account only lasted sixty days, (P’s Opp. at 5) - excuse Plaintiff from complying

with the statute of limitations. Plaintiffs arguments fail to link these circumstances to his

inability to timely file this action and thus fails to explain how any circumstance “beyond his

control . . . prevented him from filing this Section 1983 action within the limitations period.”

7 Plaintiff does not indicate the date his eyeglasses were confiscated. He does, however,

state that it occurred during the period of hunger strikes in 2017. (P’s Opp. at 17-18.)

Urena v. Annucci, No. 16-CV-9708, 2018 WL 3863454, at *4 (S.D.N.Y. Aug. 14, 2018)

(cleaned up); see Hines, 2021 WL 2456679, at *3.

Indeed, Plaintiffs papers reveal that in addition to the grievance he filed in March 2015

relating to the incident at issue in this case, (SAC at 21, 37, 49, 55; AC at 14, 28, 39, 44), he filed

a number of other grievances throughout this time period, (see Aff. at 1; P’s Opp. at 4-5).

Specifically, it appears he filed two grievances in 2015, four in 2016 and three in 2017. (See Aff.

at 1, 5; P’s Opp. at 4-5.) If he was able to do so despite the obstacles he claims, there is no

apparent reason why he could not have timely filed this lawsuit by September 14, 2017.

Nor does the continuing violation doctrine save Plaintiffs claims. That doctrine does not

apply to “discrete unlawful acts, even where those discrete acts are part of a serial violation, but

to claims that by their nature accrue only after the plaintiff has been subjected to some threshold

amount of mistreatment.” Lefebvre v. Morgan, No. 14-CV-5322, 2016 WL 1274584, at *18

(S.D.N.Y. Mar. 31, 2016). It “can apply when a prisoner challenges a series of acts that together

comprise an Eighth Amendment claim of deliberate indifference to serious medical needs.”

Shomo v. City ofNew York, 579 F.3d 176, 182 (2d Cir. 2009). “That the continuing violation

doctrine can apply, however, does not mean it must.” Id. (emphasis in original). Thus, “[t]o

assert a continuing violation for statute of limitations purposes, the plaintiff must allege both the

8 While the absence of eyeglasses between summer 2017 and April 2019 could justify

equitable tolling for that period if it in fact prevented Plaintiff from seeing well enough to write

or type.a complaint, there is no indication that that is the case here. Plaintiff claims to have

experienced blurry or double vision while he was without his glasses, (P’s Opp. at 17), but he

does not claim that these conditions were constant or that they were so severe that he could not

write. Indeed, the only evidence is to the contrary. Attached to Plaintiffs opposition is a

grievance form he filled out by hand, dated November 13, 2017, complaining about the

confiscation of, and failure to return, his glasses. (Id. at 19.) As he was able to complete that

form clearly and legibly without his glasses, there is no reason he could not have timely filed his

complaint without them. Further, he was without his glasses only for the last few months of the

three-year period. Had he been diligent, he could have filed his complaint well before then.

existence of an ongoing policy of deliberate indifference to his or her serious medical needs and

some non-time-barred acts taken in the furtherance of that policy.” Id. (cleaned up). “As a

general rule, courts in the Second Circuit view continuing violation arguments with disfavor,”

and do not apply it unless there are “compelling circumstances.” Plumey v. New York, 389 F.

Supp. 2d 491, 498 (S.D.N.Y. 2005) (cleaned up).

The only facts Plaintiff provides describe alleged lack of care in 2014 and 2015 based on

denial of treatment, misdiagnosis, and denial of sick call. Putting aside whether these are

discrete acts and assuming they amount to a policy, Plaintiff identifies no non-time-barred act

that occurred within the three years before he filed this lawsuit. See Jennings v. Municipality of

Suffolk Cnty., No. 1 l-CV-911,2013 WL 587892, at *1 (E.D.N.Y. Feb. 13, 2013); see also

Mitchell v. Goord, No. 06-CV-6197, 2011 WL 4747878, at *5 (W.D.N.Y. Aug. 24, 2011)

(plaintiff must specify a timely act by named defendant to invoke continuing violation doctrine),

report and recommendation adopted, 2011 WL 4753456 (W.D.N.Y. Oct. 5, 2011). Therefore,

the continuing violation doctrine does not apply.

For the reasons stated above, Plaintiffs § 1983 claims are time-barred.9

Leave to Amend

Leave to amend a complaint should be freely given “when justice so requires.” Fed. R.

Civ. P. 15(a)(2). “[I]t is within the sound discretion of the district court to grant or deny leave to

amend.” Kim v. Kimm, 884 F.3d 98, 105 (2d Cir. 2018) (cleaned up). “Leave to amend, though

liberally granted, may properly be denied” for “‘repeated failure to cure deficiencies by

amendments previously allowed’” or “‘futility of amendment,”’ among other reasons. Ruotolo v.

Because I dismiss on statute of limitations grounds, I need not address Defendants’

arguments on the merits.

City ofN.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182

(1962)).

Plaintiff has already amended his complaint twice. (See Docs. 11, 25.) In general, a

plaintiff s failure to fix deficiencies in the previous pleading, after being provided notice of them,

is alone sufficient ground to deny leave to amend. See Nat 7 Credit Union Admin. Bd. v. U.S.

Bank Nat’l Ass’n, 898 F.3d 243, 257-58 (2d Cir. 2018) (“When a plaintiff was aware of the

deficiencies in his complaint when he first amended, he clearly has no right to a second

amendment even if the proposed second amended complaint in fact cures the defects of the first.

Simply put, a busy district court need not allow itself to be imposed upon by the presentation of

theories seriatim.”) (cleaned up); In re Eaton Vance Mut. Funds Fee Litig., 380 F. Supp. 2d 222,

242 (S.D.N.Y. 2005) (denying leave to amend because “the plaintiffs have had two opportunities

to cure the defects in their complaints, including a procedure through which the plaintiffs were

provided notice of defects in the Consolidated Amended Complaint by the defendants and given

a chance to amend their Consolidated Amended Complaint,” and “plaintiffs have not submitted a

proposed amended complaint that would cure these pleading defects”), aff'dsub nom. Bellikoff v.

Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007) (per curiam) (“[PJlaintiffs were not

entitled to an advisory opinion from the Court informing them of the deficiencies in the

complaint and then an opportunity to cure those deficiencies.”) (cleaned up).

Further, Plaintiff has not asked to amend again or otherwise suggested that he is in

possession of facts that would cure the deficiencies identified in this opinion. Indeed, “[t]he

problem[s] with [Plaintiffs] causes of action [are] substantive,” and “better pleading will not

cure [them].” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Accordingly, the Court

declines to grant leave to amend sua sponte. See TechnoMarine SA v. Giftports, Inc., 758 F.3d

493, 505 (2d Cir. 2014) (plaintiff need not be given leave to amend if plaintiff fails to specify

how amendment would cure the pleading deficiencies in the complaint); Gallop v. Cheney, 642

F.3d 364, 369 (2d Cir. 2011) (district court did not err in dismissing claim with prejudice in

absence of any indication plaintiff could or would provide additional allegations leading to

different result); Horoshko v. Citibank, N.A., 373 F.3d 248, 249-50 (2d Cir. 2004) (per curiam)

(district court did not abuse its discretion by not granting leave to amend where there was no

indication as to what might have been added to make the complaint viable and plaintiffs did not

request leave to amend).

IV.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. The Clerk of

the Court is respectfully directed to terminate the pending motion, (Doc. 32), and close the case.

SO ORDERED.

Dated: July 21, 2021

White Plains, New York

CATHY SmBEL, U.S.D.J.

Case 22-286, Document 34, 05/26/2022, 3322255, Pagel of 1

S.D.N.Y. - W.P.

20-cv-2004

Halpem, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 26th day of May, two thousand twenty-two.

Present:

Rosemary S. Pooler,

Robert D. Sack,

Alison J. Nathan,

Circuit Judges.

Darrell Gunn,

Plaintiff-Appellant,

22-286

Acting Commissioner Anthony J. Annucci,

Superintendent Thomas R. Griffin,

Defendants-Appellees.

Appellant, pro se, moves for in forma pauperis status and reversal. However, this Court has

determined sua sponte that the notice of appeal was untimely filed. Upon due consideration, it is

hereby ORDERED that the appeal is DISMISSED for lack of jurisdiction. See 28 U.S.C. § 2107;

Bowles v. Russell, 551 U.S. 205, 214 (2007). It is further ORDERED that Appellant’s motion is

DENIED as moot.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

Case 7:20-cv-02004-PMH Document 25 Filed 04/29/21 Page 1 of 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DARRELL GUNN, 03-B-2443,

Plaintiff,

20 CIVIL 2004 (PMH)

-against-

JUDGMENT

ANTHONY ANNUCCI, Acting

Commissioner, et al.,

Defendants.

It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons

stated in the Court's Memorandum Opinion and Order dated April 29, 2021, For the foregoing

reasons, Defendants’ motion to dismiss is GRANTED. While “[district courts should frequently

provide leave to amend before dismissing a pro se complaint... leave to amend is not necessary when

it would be futile.” Reed v. Friedman Mgmt. Corp., 541 F. App’x 40, 41 (2d Cir. 2013) (citing Cuoco

v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). In this case, the Complaint is dismissed with prejudice

because any amendment would be futile; accordingly, this case is closed.

Dated: New York, New York

April 29, 2021

RUBY J. KRAJICK

ClenkofCqur#7

BY:

Depi

Clerk

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 1 of 19

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DARRELL GUNN, 03-B-2443,

Plaintiff,

MEMORANDUM OPINION

AND ORDER

-againstANTHONY J. ANNUCCI, Acting

Commissioner, et al.,

20-CV-02004 (PMH)

Defendants.

PHILIP M. HALPERN, United States District Judge:

Plaintiff Darrell Gunn (“Plaintiff’), proceeding pro se and in forma pauperis, brings this

action under 42 U.S.C. § 1983 against Anthony Annucci (“Annucci”), Acting Commissioner of

the New York State Department of Corrections and Community Supervision (“DOCCS”), and

Thomas R. Griffin (“Griffin”), Superintendent of Green Haven Correctional Facility (“Green

Haven”), for violating his rights under the Constitution. (Doc. 1, “Compl.”). Specifically, Plaintiff

claims that Annucci and Griffin (collectively, “Defendants”) violated his Eighth Amendment

rights when, from April 15, 2017 to May 15, 2017, the heat was turned off at Green Haven and he

was exposed to “unseasonably lower than average” temperatures. {Id. Iff 11-12, 14).

Defendants filed a motion to dismiss the Complaint under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6) on December 11, 2020. (Doc. 16; Doc. 19, “Def. Br.”). Plaintiff opposed the

motion on January 22,2021 (Doc. 20, “Opp. Br.”), and the motion was briefed fully with the filing

of Defendants’ reply memorandum of law in further support of their motion to dismiss on February

5, 2021 (Doc. 23, “Reply Br.”).

For the reasons set forth below, Defendants’ motion to dismiss is GRANTED.

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 2 of 19

BACKGROUND

Plaintiff maintains that from April 15, 2017 to May 15, 2017, while incarcerated at Green

Haven, he was “expos[ed] ... to bitter cold temperatures ....” (Compl. ^ 11). During this month

long period in the spring of 2017, Plaintiff claims that “temperatures during the day would reach

between 40° and 45°... and then even lower overnight—only low 30°s.” (Id. ^ 12). Plaintiff asserts

that he endured “incredible undue hardships, soft tissue problems, pain and stiffness, depression,

anxiety, loss of sleep, and mood swings” (id. ]} 17), and undertook “futile and hopeless attempt[s]

to keep warm ... [by] wearing] all his clothing ... in his cell under the bedding ... .” (id. ][ 18).

As a result of being exposed to the elements, Plaintiff insists that he “cannot live a normal life” or

“perform typical daily life activities, i.e. reading, writing, meeting court deadlines, [arid] sleeping.”

{IdA 16).

Plaintiff notes affirmatively that he “used the prisoner grievance procedure available at

Green Haven ... to try and solve the problem.” (Id.

22). Plaintiff pled the following regarding

the grievance procedure he followed at Green Haven:

On May 25,2017 plaintiff DARRELL GUNN, 03-B-2443 presented

the facts relating to this complaint. On July 3, 2017 plaintiff was

sent a response saying that the grievance had been denied. On

August 18,2017 plaintiff appealed the denial of the grievance # GH86618-17.

(Id.

22).1 On these facts, Plaintiff proceeds against Defendants in both their official and

individual capacities seeking, inter alia, “[compensatory damages in the amount of $250,000

against each defendant, jointly and severally” and “[p]unitive damages in the amount of $500,000

against each defendant.” (Id. ffl[ 8, 28-29).

1 Plaintiff references also a grievance filed in May 2016. (Id. ]j 21 (referencing “GH-82882-16”)). As that

grievance cannot complain about the conditions underlying this proceeding—which occurred a year later—

the Court need not and does not consider it.

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 3 of 19

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1)

“Federal courts are courts of limited jurisdiction, and Rule 12(b)(1) requires dismissal of

an action ‘when the district court lacks the statutory or constitutional power to adjudicate it.’”

Schwartz v. Hitrons Sols., Inc., 397 F. Supp. 3d 357, 364 (S.D.N.Y. 2019) (quoting Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000)). “The party invoking the Court’s jurisdiction

bears the burden of establishing jurisdiction exists.” Hettler v. Entergy Enters., Inc., 15 F. Supp.

3d 447,450 (S.D.N.Y. 2014) (citing Conyers v. Rossides, 558 F.3d 137,143 (2d Cir. 2009)). When

deciding a motion to dismiss under Rule 12(b)(1) at the pleadings stage, “the Court ‘must accept

as true all material facts alleged in the complaint and draw all reasonable inferences in the

plaintiffs favor.’” Id. (quoting Conyers, 558 F.3d at 143); see also Doe v. Trump Corp., 385 F.

Supp. 3d 265, 274 (S.D.N.Y. 2019).

When “the defendant moves for dismissal under Rule 12(b)(1) ... as well as on other

grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the

complaint for lack of subject matter jurisdiction, the accompanying defenses and objections

become moot and do not need to be determined.” Saint-Amour v. Richmond Org, Inc., 388 F.

Supp. 3d 277, 286 (S.D.N.Y. 2019) (quoting United States v. New York City Dep’t ofHous., Pres.

& Dev., No. 09-CV-6547, 2012 WL 4017338, at *3 (S.D.N.Y. Sept. 10, 2012)).

II.

Federal Rule of Civil Procedure 12tb¥61

A Rule 12(b)(6) motion enables a court to dismiss a complaint for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 4 of 19

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). The factual allegations pled “must

be enough to raise a right to relief above the speculative level. ...” Twombly, 550 U.S. at 555.

“When there are well-ple[d] factual allegations, a court should assume their veracity and

then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

Thus, the Court must “take all well-ple[d] factual allegations as true, and all reasonable inferences

are drawn and viewed in a light most favorable to the plaintiff^].” Leeds v. Meltz, 85 F.3d 51, 53

(2d Cir. 1996). The presumption of truth, however, ‘“is inapplicable to legal conclusions,’ and

‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556

U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than labels and

conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.

A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to

less stringent standards than formal pleadings drafted by lawyers . . . .” Estelle v. Gamble, 429

U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (internal quotation

marks omitted)). Because pro se plaintiffs “‘are often unfamiliar with the formalities of pleading

requirements,’ courts must ‘apply a more flexible standard in determining the sufficiency of a pro

se [complaint] than they would in reviewing a pleading submitted by counsel.’” Smith v. U.S. Dep 7

of Justice, 218 F. Supp. 2d 357, 361 (W.D.N.Y. 2002) (quoting Platsky v. Cent. Intelligence

Agency, 953 F.2d 26, 28 (2d Cir. 1991)). While “[p]ro se complaints are held to less stringent

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 5 of 19

standards than those drafted by lawyers, even following Twombly and Iqbal," dismissal is proper

“where a plaintiff has clearly failed to meet minimum pleading requirements.” Thomas v.

Westchester Cty., No. 12-CV-6718, 2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013) (internal

citations omitted); see also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro

se case ... although a court must accept as true all of the allegations ... in a complaint, that tenet

is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” (internal quotation marks omitted)).

Therefore, while the Court must “draw the most favorable inferences that [a plaintiff s]

complaint supports, [it] cannot invent factual allegations that [a plaintiff] has not pled.” Chappius,

618 F.3d at 170. The Court has also a duty to interpret “the pleadings of a pro se plaintiff liberally

and interpret them ‘to raise the strongest arguments that they suggest.”’ McPherson v. Coombe,

174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

III.

Documents Considered

On a motion under Rule 12(b)(1), “a district court. . . may refer to evidence outside the

pleadings.” Makarova, 201 F.3d at 113. Indeed, on such a motion, the Court “may consider

affidavits and other materials beyond the pleadings to resolve the jurisdictional issue,” along with

“matters of which judicial notice may be taken.” Malloy v. Pompeo, No. 18-CV-4756, 2020 WL

5603793, at *8 (S.D.N.Y. Sept. 18, 2020) (internal quotation marks omitted). Similarly, on a Rule

12(b)(6) motion, “the Court is entitled to consider facts alleged in the complaint and documents

attached to it or incorporated in it by reference, documents ‘integral’ to the complaint and relied

upon in it, and facts of which judicial notice may properly be taken under Rule 201 of the Federal

Rules of Evidence.” Heckman v. Town of Hempstead, 568 F. App’x 41,43 (2d Cir. 2014); see also

Manley v. Utzinger,No. 10-CV-2210,2011 WL2947008,at*1 n.l (S.D.N.Y. July 21,2011)(“The

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 6 of 19

Court may consider . . . documents incorporated into the complaint by reference, and documents

possessed by or known to the plaintiff and upon which plaintiff relied in bringing the suit.”). Still,

“[w]here an extrinsic document is not incorporated by reference, the district court may

nevertheless consider it if the complaint relies heavily upon its terms and effect, which renders the

document integral to the complaint.” Schafer v. Direct Energy Servs., LLC, No. 20-3084-CV, 2021

WL 1621595, at *1 (2d Cir. Apr. 27, 2021) (internal quotation marks omitted).

Defendants’ motion is supported by a declaration, signed by counsel, submitting for the

Court’s consideration a one-page memorandum, dated September 12, 2017, denying Plaintiffs

attempted appeal of his grievance to the Central Office Review Committee (“CORC”). (See Doc.

17, Declaration of Julinda Dawkins (“Dawkins Deck”); Doc. 17-1, Dawkins Deck Ex. A).

Plaintiff, in opposition to the motion, submitted papers documenting his compliance with Green

Haven’s grievance procedure (Opp. Br. at 6-26), along with a January 31,2021 Decision and Order

issued by the New York State Court of Claims which, inter alia, denied his request to file a late

notice of claim concerning the conditions he experienced at Green Haven from April 2017 to May

2017 (id. at 27-35). First, neither Plaintiff nor Defendants have opposed the Court’s consideration

of any extraneous documents. Second, the Court may consider the documents concerning

Plaintiffs exhaustion of administrative remedies because he pled affirmatively that he tried to

grieve his exposure to cold temperatures from April 15,2017 to May 15,2017 and that he appealed

the denial of the grievance—Grievance No. GH-86618-17—on August 18, 2017. (Compl. ^ 22).

Documents associated with that grievance are, therefore, integral to and referenced in the

Complaint. See Thomas v. Goord, 215 F. App’x 51, 54 n.2 (2d Cir. 2007) (observing that because

the plaintiff “specifically references the . . . grievance . . . and indicates that she is making

allegations that are contained within that grievance,” the grievance could be considered on a

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 7 of 19

motion to dismiss because its contents were “incorporated by reference”); Sanchez v. Velez, No.

08-CV-1519, 2009 WL 2252319, at *1 n.l (S.D.N.Y. July 24, 2009) (“Because plaintiffs

grievances are referenced in the complaint, the grievance documents are incorporated by reference

and properly considered on a motion to dismiss.”). Likewise, the Court may consider the Court of

Claims’ Decision and Order because it may take judicial notice of state court decisions. See Tirse

v. Gilbo, No. 15-CV-987, 2016 WL 4046780, at *14 (N.D.N.Y. July 27, 2016) (explaining that

courts may take judicial notice of opinions issued by other courts “to establish the existence of the

opinion, not for the truth of the facts asserted” therein (internal quotation marks omitted)).

ANALYSIS

Lack of Subject-Matter Jurisdiction

The Court, as guided by precedent, turns first to Defendants’ arguments regarding the lack

of subject-matter jurisdiction and dismissal required under Rule 12(b)(1).

A. New York Correction Law § 24

Plaintiff does not identify specifically any state law claims for relief aside from referencing

generally the existence of such claims. (See Compl. 12 (claiming that the Court has “supplemental

jurisdiction over the plaintiffs state law tort claims”)). Nevertheless, Defendants argue that to the

extent the Court construes the Complaint as seeking relief under New York State law, the Court

must dismiss those claims for want of subject-matter jurisdiction. (Def. Br. at 11-12).

New York Correction Law § 24 provides, in pertinent part:

1. No civil action shall be brought in any court of the state, except

by the attorney general on behalf of the state, against any officer

or employee of the department, which for purposes of this

section shall include members of the state board of parole, in his

or her personal capacity, for damages arising out of any act done

or the failure to perform any act within the scope of the

employment and in the discharge of the duties by such officer or

employee.

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 8 of 19

2. Any claim for damages arising out of any act done or the failure

to perform any act within the scope of the employment and in

the discharge of the duties of any officer or employee of the

department shall be brought and maintained in the court of

claims as a claim against the state.

N.Y. Corr. Law §§ 24(l)-(2). “The Second Circuit has held that this provision prevents federal

courts from exercising pendent jurisdiction over state law claims appended to federal claims

brought pursuant to 42 U.S.C. § 1983.” Sughrim v. New York, No. 19-CV-7977, 2020 WL

7047697, at *21 (S.D.N.Y. Nov. 30, 2020) (quoting Hassell v. Fischer, 96 F. Supp. 3d 370, 385

(S.D.N.Y. 2015)); see also Davis v. McCready, 283 F. Supp. 3d 108, 124 (S.D.N.Y. 2017)

(“[Ujnder Section 24, any tort claim arising under New York law . . . must be dismissed for lack

of subject matter jurisdiction.”); Cruz v. New York, 24 F. Supp. 3d 299, 309 (S.D.N.Y. 2014)

(“Plaintiffs state law claims against Defendants ... are barred because New York Correction Law

§ 24 shields them from liability for state law claims in both state and federal court.”).

Plaintiff does not suggest that Defendants acted outside the scope of their employment.

{See generally Compl.); see also Cruz, 24 F. Supp. 3d at 310 (explaining that “[t]he test to

determine whether the defendants’ actions fall within the scope of their employment is whether

the act was done while the servant was doing the master’s work no matter how irregularly, or with

what disregard of instructions” (internal quotation marks omitted)). As such, because any state law

claims against Defendants “would be barred in New York state courts, this Court equally lacks

jurisdiction over the claims.” Hassell, 96 F. Supp. 3d at 385. While this conclusion requires that

any claims pressed under New York state law be dismissed, it does not impact the viability of any

claims under federal law.2

2 Notably, the New York State Court of Claims denied Plaintiffs unopposed motion to serve and file a late

notice of claim concerning the facts alleged herein. (See Opp. Br. at 27-35).

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 9 of 19

B. Eleventh Amendment

Insofar as Plaintiff seeks relief under 42 U.S.C. § 1983, Defendants argue that the claims

must be dismissed to the extent they seek “damages against Defendants in their official capacities

. . .

(Def. Br. at 11). This argument is based upon the immunity provided under the Eleventh

Amendment. (Id.).

The Eleventh Amendment provides: “The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

Const, amend. XI. This language has been interpreted to bar suits, even those arising under federal

law, against a state by one of its own citizens. Woods v. Rondout Valley Centr. Sch. Dist. Bd. of

Educ., 466 F.3d 232, 236 (2d Cir. 2006) (citing Hans v. Louisiana, 134 U.S. 1, 15 (1890)). “[A]s

a general rule, state governments may not be sued in federal court unless they have waived their

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

Amendment immunity when acting pursuant to its authority under Section 5 of the Fourteenth

Amendment.” Nelkenbaum v. Jordy, No. 19-CV-7953, 2020 WL 7630354, at *2 (S.D.N.Y. Dec.

22, 2020) (quoting Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (alteration in original)).

To that point, it is well settled that “New York has not waived its sovereign immunity in § 1983

lawsuits, nor has Congress abrogated the State’s immunity.” Phillips v. New York, No. 13-CV927, 2013 WL 5703629, at *3 (N.D.N.Y. Oct. 17, 2013) (citing Vincent v. Yelich, 718 F.3d 157,

177 (2d Cir. 2013)); see also Keitt v. New York City, 882 F. Supp. 2d 412, 424 (S.D.N.Y. 2011)

(“Magistrate Judge Freeman properly concluded that Keitt’s Section 1983, 1985, and 1986 claims

against the State of New York and its agencies are barred by the [Eleventh] Amendment.”).

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 10 of 19

Consequently, because the Eleventh Amendment deprives this Court of subject-matter

jurisdiction and neither exception applies, the claims for relief under 42 U.S.C. § 1983 are

dismissed under Rule 12(b)(1) to the extent they seek relief against Defendants in their official

capacities. This result does not affect the 42 U.S.C. § 1983 claims against Defendants in their

individual capacities; and therefore the Court must consider Defendants’ arguments for dismissal

under Rule 12(b)(6) as to those claims.

II.

Failure to State a Claim Upon Which Relief Can Be Granted

A. Failure to Exhaust Administrative Remedies

The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought

with respect to prison conditions under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This provision “applies to all

inmate suits about prison life, whether they involve general circumstances or particular

episodes,” Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009) (quoting Porter v. Nussle, 534

U.S. 516, 532 (2002)), and it is “‘mandatory’: [a]n inmate ‘shall’ bring ‘no action’ (or said more

conversationally, may not bring any action) absent exhaustion of available administrative

remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016) (citation omitted). “Moreover, the PLRA

‘requires proper exhaustion, which means using all steps that the prison grievance system holds

outAyala-Rosario v. Westchester Cty., No. 19-CV-3052, 2020 WL 3618190, at *4 (S.D.N.Y.

July 2, 2020) (quoting Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016)). This “means that

‘prisoners must complete the administrative review process in accordance with the applicable

procedural rules—rules that are defined not by the PLRA, but by the prison grievance process

itself.’” Gottesfeldv. Anderson, No. 18-CV-10836, 2020 WL 1082590, at *6 (S.D.N.Y. Mar. 6,

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 11 of 19

2020) (quoting Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012)). Compliance with the PLRA

“is an affirmative defense, not a pleading requirement, and therefore a motion to dismiss for failure

to exhaust may only be granted if it is clear from the face of the complaint that the plaintiff failed

to exhaust” his administrative remedies. See Gunn v. Beschler, No. 16-CV-6206, 2020 WL

7398751, at *4 (W.D.N.Y. Dec. 17, 2020). Such clarity exists here.

As an inmate in DOCCS’ custody, Plaintiff was required to follow a three-step process to

fully and completely exhaust the grievance process. See generally Amador v. Andrews, 655 F.3d

89, 96-97 (2d Cir. 2011) (outlining DOCCS’ three-step grievance process). First, a grievance must

be submitted to the Inmate Grievance Resolution Committee (“IGRC”), a facility-level body

consisting of inmates and facility staff members. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 701.4,

701.5(a)-(b). Second, should the inmate be dissatisfied with the conclusion reached by the IGRC,

he may appeal that decision to the superintendent of the facility within seven calendar days of

receiving the IGRC’s determination. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(c)(1). Finally,

if the superintendent’s conclusions are unfavorable, the inmate may appeal that decision to CORC

within seven calendar days of receiving the superintendent’s determination. N.Y. Comp. Codes R.

& Regs. tit. 7, § 701.5(d)(l)(i).

Plaintiff filed a grievance regarding this incident on May 25, 2017. (Compl. ^ 22; Opp. Br.

at 6 (IGRC “Acknowledgment of Receipt” form), 7-13 (grievance)). Although it is not clear when

Plaintiff received the IGRC’s response—or what that determination was—he appealed that

determination to Griffin, the second step, on June 16, 2017. (Opp. Br. at 14-16). Griffin issued a

decision rejecting Plaintiffs appeal on June 29, 2017. {Id. at 17). Plaintiff received Griffin’s

determination on July 3, 2017 (Compl. f 22), and he attempted to appeal Griffin’s decision to

CORC on August 18, 2017 {id.

22; Opp. Br. at 17, 23-26). On or about September 8, 2017,

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 12 of 19

Plaintiff sought an extension of time within which to make his appeal to CORC, citing a variety

of exigent circumstances. (Opp. Br. at 18-22). On September 12,2017, Plaintiffs appeal to CORC

was rejected as untimely because seventy-five days had passed. (Dawkins Deck Ex. A). Based

upon this information, it is clear on the face of the Complaint that Plaintiff had to take his appeal

to CORC by July 10, 2017 (i.e., seven calendar days after receipt). Plaintiff did not meet this

deadline and tried to appeal Griffin’s decision more than a month later. (Compl. If 22; see also

Opp. Br. at 17, 23-26).

The remaining claims—those under 42 U.S.C. § 1983 against Defendants in their

individual capacities—are consequently dismissed for failure to state a claim under Federal Rule

of Civil Procedure 12(b)(6) in light of Plaintiffs failure to exhaust his administrative remedies

under the PLRA. 3

B. Failure to State a Conditions of Confinement Claim (Eighth Amendment!

Assuming, arguendo, that Plaintiff did exhaust his administrative remedies and the two

remaining claims could not be dismissed on that basis, the claim would nevertheless be dismissed

for its substantive failings. Reading the Complaint liberally, Plaintiff asserts one claim for relief

against each Defendant under 42 U.S.C. § 1983. That law provides, in pertinent part, that “fejvery

person who, under color of any statute . . . subjects, or causes to be subjected, any citizen of the

United States ... to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured ....” 42 U.S.C. § 1983. “[Tjhis language

3 Plaintiff argued, in his opposition to the motion and in conclusory fashion, that he “attempted to exhaust

his administrative remedies but was on suicide watch on a hunger strike and was not provided mail, paper,

and pen. See attached.” (Opp. Br. at 3-4). Upon review of the documents attached to the opposition papers,

Plaintiff received medical attention and was housed at Green Haven’s infirmary sporadically between July

28, 2017 to September 5, 2017. (Id. 18-22). Although there are situations in which an inmate’s failure to

exhaust administrative remedies may be excused when the remedies are unavailable, see Thompson v.

Booth, No. 16-CV-03477, 2021 WL 918708, at *7 (S.D.N.Y. Mar. 10, 2021), the events Plaintiff cited

occurred almost three weeks after the deadline to appeal to CORC expired.

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 13 of 19

does not create substantive rights; rather, it creates a mechanism by which individuals can

vindicate the violation of rights secured elsewhere.” Santucci v. Levine, No. 17-CV-10204, 2021

WL 76337, at *3 (S.D.N.Y. Jan. 8, 2021). “As such, in each permutation of a claim under that law,

a plaintiff must demonstrate: (1) a right secured by the Constitution or laws of the United States

was violated, and (2) the right was violated by a person acting under color of state law, or a state

actor.” Williams v. Novoa, No. 19-CV-11545, 2021 WL 431445, at *5 (S.D.N.Y. Feb. 5, 2021)

(internal quotation marks omitted).

Defendants advance a variety of arguments as to why Plaintiffs claims for relief should be

dismissed. The Court addresses these arguments seriatim.

1. Failure to Plead Defendants’ Personal Involvement

As a fundamental prerequisite “[t]o establishing] a § 1983 claim, a plaintiff must show the

defendants’ personal involvement in the alleged constitutional violation.” Boley v. Durets, 687 F.

App’x 40, 41 (2d Cir. 2017) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Failing to

allege that a defendant was personally involved in, or responsible for, the conduct complained of

renders a complaint “fatally defective on its face.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886

(2d Cir. 1987) (internal quotation marks omitted). Moreover, as recently emphasized by the

Second Circuit, the fact that a defendant is a supervisor is not enough to impute personal

involvement onto that actor; rather, “supervisory liability requires that the ‘defendant, through the

official’s own individual actions, has violated the Constitution.’” Novoa, 2021 WL 431445, at *6

(quoting Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)); see also Greene v. Sampson,

No. 18-CV-6103, 2021 WL 355477, at *4 (S.D.N.Y. Feb. 2, 2021). Here, Plaintiff failed to plead

facts suggesting Annucci’s personal involvement in the alleged constitutional violation, but

successfully implicated Griffin.

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 14 of 19

Annucci’s role in this action is limited to the following: (1) he is the Acting Commissioner

of DOCCS (Compl.

5); (2) he “acted pursuant to the policies, regulations or decisions officially

adopted or by . . . DOCCS” (id. | 9); (3) he, “with deliberate indifference did cut off. . . Green

Haven . . . [and] expos[ed] plaintiff to bitter cold” (id. ]j 11); (4) he was “personally involved in

subjecting plaintiff to prolonged periods of bitter cold” (id.

15); and (5) “in many ways . . . [he]

created an atmosphere of distrust, disrespect, dishonesty, distress, and deceit, perpetuating

miserable conditions . . .

(id. ^ 19). None of these facts, together or separately, allege plausibly

that Annucci was personally involved in the subject conduct. The first two allegations involve

Annucci based on his position in the DOCCS hierarchy; this is insufficient to establish personal

involvement. See Banks v. Annucci, 48 F. Supp. 3d 394, 416 (N.D.N.Y. 2014) (explaining that “a

mere ‘linkage’ to the unlawful conduct through the ‘chain of command’ ... is insufficient to show

... personal involvement....”). The three remaining allegations are conclusory and totally devoid

of any facts suggesting plausibly that Annucci was involved in turning the heat off at Green Haven.

See Murphy v. Spaulding, No. 20-CV-9013, 2020 WL 7248855, at *3 (S.D.N.Y. Dec. 7, 2020)

(claiming that the warden created an “atmosphere” permitting a violation to occur was insufficient

to allege personal involvement); Haywood v. Annucci, No. 18-CV-10913, 2020 WL 5751530, at

*5 (S.D.N.Y. Sept. 25, 2020) (noting that the plaintiff “offer[ed] no factual allegations suggesting

that Annucci was present for, knew of, or even had any reason to know about the alleged”

constitutional violation); Ford v. Aramark, No. 18-CV-2696, 2020 WL 377882, at *14 (S.D.N.Y.

Jan. 23, 2020) (dismissing claim against prison official where “the Complaint lack[ed] any nonconclusory allegation” about that official’s personal involvement (emphasis in original)). As

Plaintiff has not alleged facts suggesting plausibly Annucci’s personal involvement, the claim

against Annucci must be dismissed.

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 15 of 19

Unlike Annucci, Plaintiff presented successfully facts suggesting plausibly that Griffin was

involved in the purported constitutional violation. Although Plaintiff pled that Griffin was involved

in the very same way as Annucci (see Compl.

6, 9,11, 15, 19), in opposing Defendants’ motion

to dismiss, he produced a variety of documents connected to the internal grievances he filed.

Among those documents is a single page, dated June 29, 2017, entitled “HEAT TURNED OFF

TOO EARLY.” (Opp. Br. at 17). The body of that document reads:

The grievant complains that the heat was turned off too early.

According to the investigation, the heat was turned off on 4/27/17,

at the Superintendent’s discretion.

(Id.). Defendants ignore this document in their reply brief. (See generally Reply Br.). However, on

a motion to dismiss, the Court may consider properly “documents that a pro se litigant attaches to

his opposition papers.” Ceara v. Deacon, 68 F. Supp. 3d 402, 405 (S.D.N.Y. 2014) (internal

quotation marks omitted). Accordingly, because this document allows the Court to infer plausibly

that Griffin directed that the heat be turned off, Plaintiff pled that Griffin was personally involved

in the alleged constitutional violation.

2. Failure to Plead the Elements of the Claim for Relief

The Eighth Amendment4 instructs that “[e]xcessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted,” U.S. Const, amend. VIII, and the

Supreme Court has explained that the Eighth Amendment requires that prison officials “provide

4 Plaintiffs claim is governed by the Eighth Amendment because he is a convicted prisoner. First, Plaintiff

pled affirmatively that he was a “state prisoner” and invokes his rights under the Eighth Amendment. (See

Compl. Prelim. Stmt., 4,24). Second, Plaintiff provided his Department Identification Number or “DIN.”

(Id. ^ 4). Searching Plaintiffs DIN (03-B-2443) on the DOCCS inmate lookup website, Plaintiff was

convicted of Murder in the First Degree and Attempted Murder in the First Degree, was received by DOCCS

in October 2003, and is serving a term of life imprisonment. See Simmonds v. Family Dollar Store, No. 18CV-1241, 2018 WL 5447046, at *1 n.l (E.D.N.Y. Oct. 25, 2018) (“The Court may take judicial notice of

Plaintiffs DOCCS inmate lookup information.”); Jackson v. Sullivan Cty., No. 16-CV-3673, 2018 WL

1582506, at *5 n.8 (S.D.N.Y. Mar. 27, 2018).

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 16 of 19

humane conditions of confinement,” which include making sure “that inmates receive adequate

food, clothing, shelter, and medical care . . .

Farmer v. Brennan, 511 U.S. 825, 832 (1994). In

order to state a claim for relief where, as here, relief is based on a theory that “the conditions of..

. confinement constitute cruel and unusual punishment, the plaintiff must satisfy both an objective

test and a subjective test.” Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996) (citation omitted).

Under the first step of the analysis, conditions of confinement are objectively serious if the

plaintiff can show that “the conditions, either alone or in combination, pose an unreasonable risk

of serious damage to his health.” Walker v. Schult, 111 F.3d 119, 125 (2d Cir. 2013). This

assessment is not “static,” as “[t]he conditions themselves must be evaluated in light of

contemporary standards of decency.” Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995). At the

motion to dismiss stage, the Court must determine whether the plaintiffs allegations lead to the

plausible inference that the plaintiff was “deprived of [his] basic human needs—e.g, food,

clothing, shelter, medical care, and reasonable safety” or was “exposed to conditions that pose[d]

an unreasonable risk of serious damage to [his] future health.” Jabbar v. Fischer, 683 F.3d 54, 57

(2d Cir. 2012) (internal quotation marks omitted). As for the second step of the analysis, the

subjective element, a defendant:

cannot be found liable under the Eighth Amendment for denying an

inmate humane conditions of confinement unless the official knows

of and disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could

be drawn that a substantial risk of serious harm exists, and he must

also draw the inference.

Darnell v. Pineiro, 849 F.3d 17, 32 (2d Cir. 2017) (quoting Farmer, 511 U.S. at 837); see also

Reyes v. Wenderlich, 779 F. App’x 55, 56 (2d Cir. 2019) (noting that a plaintiff “must demonstrate

that, subjectively, prison staff acted with deliberate indifference ... in failing to address the

purported danger” (internal quotation marks omitted)).

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 17 of 19

It is well-established in the Second Circuit that an inmate may state a conditions of

confinement claim under the Eighth Amendment as a result of exposure to excessive cold. See,

e.g., Wenderlich, 779 F. App’x at 56 (“We have held that inmates’ prolonged exposure to subzero

temperatures violates the Eighth Amendment.”); Brown v. New York, No. 20-CV-6042, 2020 WL

3630388, at *5 (W.D.N.Y. June 26, 2020) (“An Eighth Amendment claim may be established by

proof that the inmate was subjected to a prolonged period of bitter cold.” (quoting Gaston v.

Coughlin, 249 F.3d 156,164(2dCir. 2001))); Henry v. Doe, No. 19-CV-10153,2020 WL 209091,

at *6 (S.D.N.Y. Jan. 10, 2020) (“A prisoner may successfully state a claim of deliberate

indifference if he alleges that he was exposed to extreme cold for long periods of time.”); Collins

v. Fischer, No. 15-CV-103, 2018 WL 1626528, at *6 (S.D.N.Y. Mar. 30, 2018) (“Various courts,

including the Second Circuit, have held that excessively hot or cold temperatures may qualify as

a constitutional violation.”). However, while “[district courts in the Second Circuit have ... found

allegations of exposure to uncomfortable temperatures for short periods of time insufficient to state

an Eighth Amendment claim,” Collins, 2018 WL 1626528, at *7 (collecting cases), “[cjases where

plaintiffs have succeeded . . . involve allegations of exposure to freezing or near-freezing

temperatures for a more prolonged period of time than eleven hours.” Ford, 2020 WL 377882, at

*7 (quoting Brims v. Ramapo Police Dep’t, No. ll-CV-712, 2011 WL 7101233, at *5 (S.D.N.Y.

Dec. 23,2011)).

Here, Plaintiffs claim is that it was a constitutional violation for him to be exposed to

“bitter cold temperatures” which fell “between 40° and 45°” during the day and the “low 30°s” at

night during one “unseasonably” cold month during the spring of 2017. (Compl. ^ 11-12, 14).

These allegations are conclusory and wholly insufficient to meet the objective element of the

analysis. Plaintiff states neither when, specifically, he was exposed to the frigid temperatures, the

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 18 of 19

length of any period of exposure, nor whether these temperatures were readings from inside or

outside the facility. {See generally id.). The fact that these details are unstated prevents the Court

from concluding that Plaintiff pled plausibly that he was objectively exposed to conditions posing

a risk to his health. See Collins, 2018 WL 1626528, at *7 (dismissing plaintiffs claim because he

did not allege “how cold the temperature in the cell actually was” or “how long he was exposed to

the ‘very cold’ temperature”); see also Lopez v. Phipps, No. 18-CV-3605, 2019 WL 2504097, at

*8 (E.D.N.Y. June 17, 2019) (dismissing pretrial detainee’s conditions of confinement claim for

failure to plead facts supporting the objective prong where he pled that “on a particular evening,

he experienced freezing temperatures, but [did] not plead the length of his confinement or how

these conditions affected his health”); cf. Wingate v. Robert N. Davoren Ctr., No. 12-CV-5521,

2013 WL 4856573, at *3 (S.D.N.Y. Sept. 10, 2013) (denying motion to dismiss plaintiffs claim

based on excessive heat where he pled that “he was exposed to ‘90 plus degree [temperatures]

everyday’ for seven days” (alteration in original)). In short, the claim must be dismissed because

the failure to provide specific facts as to the objective prong has prevented Plaintiff from pushing

his claim “across the line from conceivable to plausible.” See Twombly, 550 U.S. at 570.

However, even if Plaintiff pled facts sufficient to state the objective element of this claim,

it would nevertheless be dismissed in light of Plaintiffs failure to plead Griffin’s deliberate

indifference. While Griffin may have directed that the heat be turned off, there is no allegation that

Griffin was actually aware that Plaintiff—or any other inmate—was exposed to freezing

temperatures at any point during the spring of 2017. See Brown, 2020 WL 3630388, at *5

(concluding that, even if the plaintiff “met the objective prong,” he offered no facts establishing

that any defendant knew about the cold conditions).

Plaintiff s conditions of confinement claim is, therefore, dismissed under Rule 12(b)(6).

Case 7:20-cv-02004-PMH Document 24 Filed 04/29/21 Page 19 of 19

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. While “[district

courts should frequently provide leave to amend before dismissing a pro se complaint... leave to

amend is not necessary when it would be futile.” Reed v. Friedman Mgmt. Corp., 541 F. App’x

40, 41 (2d Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). In this case,

the Complaint is dismissed with prejudice because any amendment would be futile.

The Clerk of the Court is respectfully directed to terminate the motion sequence pending

at Doc. 16, mail a copy of this Memorandum Opinion and Order to Plaintiff, and close this case.5

SO ORDERED:

Dated:

White Plains, New York

April 29, 2021

PHILIP M. HALPERN

United States District Judge

5 Given the conclusions reached herein, the Court need not and does not address Defendants’ remaining

argument as to qualified immunity.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.