govinfo:USCOURTS-nynd-9_25-cv-00765-1

Corpus: 543,223 opinions · 3,177 judges · newest 2026-06-23 · expanding Coverage ↗

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JULIO ISLEY SMITH,

Plaintiff,

JOHN DOE #1, et al.,

Defendants.

9:25-CV-0765
(BKS/MJK)
APPEARANCES:

JULIO ISLEY SMITH
Plaintiff, pro se
99-A-6505
Eastern NY Correctional Facility
Box 338
Napanoch, NY 12458

BRENDA K. SANNES
Chief United States District Judge

DECISION AND ORDER
I. INTRODUCTION
On June 16, 2025, pro se plaintiff Julio Isley Smith ("plaintiff") commenced this action
by submitting a complaint pursuant to 42 U.S.C. § 1983 ("Section 1983"), with an application
to proceed in forma pauperis ("IFP").
1 Dkt. No. 1 ("Compl."); Dkt. No. 5 ("IFP Application").
The complaint asserted claims related to plaintiff's confinement in the custody of the New

1 Four additional plaintiffs were listed in the caption of the complaint. See Dkt. No. 1. In a Decision and Order
filed on July 29, 2025 (the "July 2025 Order"), the Court advised plaintiffs that for the case to proceed, each
plaintiff must pay the statutory filing fee in full or submit an IFP application. Dkt. No. 4. The four addi tional
plaintiffs failed to comply with the July 2025 Order or communicate with the Court in any manner. Thus, they
were dismissed as plaintiffs. See Dkt. No. 8 at 3.

York State Department of Corrections and Community Supervision ("DOCCS") at Eastern
Correctional Facility ("Eastern C.F."). See generally Compl.
By Decision and Order filed on November 5, 2025 (the "November 2025 Order"), this
Court granted plaintiff's IFP Application and reviewed the sufficiency of the complaint in
accordance with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Dkt. No. 8. On the
basis of that review, the Court dismissed plaintiff's complaint for failure to state a claim. Id.
In light of plaintiff's pro se status, the Court provided plaintiff with an opportunity to amend his
complaint. Id.
On May 20, 2026, plaintiff filed an amended complaint.
2 Dkt. No. 17 ("Am. Compl.").
II. SUFFICIENCY OF AMENDED COMPLAINT
A. Legal Standard
The legal standard governing the dismissal of a pleading for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A was discussed at length in the
November 2025 Order and will not be restated in this Decision and Order. See Dkt. No. 8 at
4-5.
B. Summary of Amended Complaint
With the amended complaint, plaintiff identifies the following new defendants:
Sergeant Lisa Wilson ("Wilson"), Sergeant Darren W. Klein ("Klein"), Sergeant Brooke Tippit
("Tippit"), Lieutenant Robert D. Cusak ("Cusak"), and Deputy Superintendent Lisa Anderson
("Anderson").
3 See generally Am. Compl. The amended complaint does not include any

2 Plaintiff entitled his submission "Second Amended Complaint," see Dkt. No. 17 at 1, however, the submission
is the first amended complaint.

3 The Clerk of the Court is directed to amend the Docket Report to include these defendants.

claims against the John Doe defendants named in the original complaint.4 See id. The
following facts are set forth as alleged by plaintiff in his amended complaint.
On or around February 17, 2025, plaintiff resided in Room 24, Cell Block South Hall,
Company #9. Am. Compl. at 3. Plaintiff "approached" Wilson to ask why he was being
escorted to breakfast at 10:30 a.m., and she responded, "talk to your company officer." Id.
However, plaintiff was unable to speak to that officer because "no officer wanted to work in
South Hall that morning." Id.
" For the next days and weeks," due to a "wild cat strike," plaintiff was confined to his
room for twenty-four hours each day without hot meals, hot water, recreation, religious
services, and the right to participate in Ramadan. Am. Compl. at 4.
Prior to the strike, plaintiff underwent diagnostic testing for "numerous ailments which
just kept getting worse." Am. Compl. at 4. Plaintiff experienced "disturbing" problems with
his respiratory system, feared dying in his sleep, and suffered "excruciating pain" from a
"botched" hernia operation "which the facility was told needs further evaluation." Id. Plaintiff
filed a grievance and was told that his treatment was delayed due to the strike. Id. "Almost
immediately after filing grievances against them," "guards" would not provide hot meals for
serval days. Id. Klein "repeatedly harassed" plaintiff in retaliation for "having to get involved
with [plaintiff's] grievance interview." Am. Compl. at 4.
In an attempt to "follow the chain of command," plaintiff brought "these concerns to
every defendant mentioned in the complaint." Am. Compl. at 5.

4 The Clerk of the Court is directed to amend the Docket Report to terminate these defendants.

Construing the amended complaint liberally5, plaintiff alleges the following: (1) Eighth
Amendment claims6; (2) First Amendment retaliation claims; and (2) state law claims. See
generally Am. Compl. Plaintiff seeks monetary damages. Id. at 6.
C. Analysis
1. Eighth Amendment Claims
The law related to Eighth Amendment claims was discussed in the November 2025
Order and will not be restated herein. See Dkt. No. 8 at 10-11. In the November 2025 Order,
the Court noted that, even assuming plaintiff alleged facts that satisfied the objective prong of
an Eighth Amendment analysis, "the complaint lacks facts indicating that defendants were
personally involved or responsible for decisions related to plaintiff's religious practices or
plaintiff's conditions of confinement." Id. at 11. Specifically, the Court noted
With respect to plaintiff's claims against defendants John Doe
Commissioner and John Doe Superintendent, "[l]iability based
solely [. . .] due to a failure to supervise, without more, constitutes
precisely the type of vicarious, respondeat superior liability that
Iqbal and Tangreti eliminate." Myers on behalf of Est. of Myers v.
Davenport, No. 1:21-CV-0922 (LEK/CFH), 2022 WL 3017367, at *4
(N.D.N.Y. July 29, 2022) (citation omitted). In this case, the
complaint is devoid of any allegations which plausibly suggest that
the Commissioner and Superintendent directly participated in any
alleged constitutional violation or that they were present or
otherwise involved in any constitutional violation. In the absence of
some tangible connection between the Commissioner and
Superintendent and any constitutional violations, the claims against

5 The Court is mindful of the Second Circuit's instruction that a pleading by a pro se litigant must be construed
liberally and interpreted to raise the strongest arguments that it suggests. See, e.g., Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district
courts" that a pro se plaintiff's pleadings must be construed liberally); Phillips v. Girdic h, 408 F.3d 124, 130 (2d
Cir. 2005) ("We leave it for the district court to determine what other claims, if any, [plaintiff] has raised. In so
doing, the court's imagination should be limited only by [plaintiff's] factual allegations, not by the legal claims set
out in his pleadings."); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) ("[W]e read [a pro se litigant's]
supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest.").

6 While plaintiff describes his claim as a "breach of duty to protect," affording plaintiff the special solicitude
required, the Court has construed this cause of action as an Eighth Amendment claim related to plaintiff's
conditions of confinement during the strike.

the Commissioner and Superintendent must be dismissed. See
O'Brien v. City of Syracuse , No. 5:22 -CV-948 (MAD/TWD), 2023
WL 6066036, at *19 (N.D.N.Y. Sept. 18, 2023) (citing, inter alia ,
Robinson v. Graham, No. 20- CV-1610, 2021 WL 2358415, *3
(N.D.N.Y. June 9, 2021) (dismissing claim against supervisor for
failure to train and manage staff as "reminiscent of a 'supervisor
liability' theory of liability for Section 1983 claims that is no longer
available" after Tangreti ), reconsideration denied, 2024 WL
4252052 (N.D.N.Y. Sept. 20, 2024). Similarly, with respect to
plaintiff's claims against Doe Employee and CO Doe, the complaint
lacks any facts suggesting that defendants were personally
involved in decisions related to plaintiff's religious practice and
conditions of confinement. Indeed, plaintiff does not allege that
defendants were present, or aware, of any alleged constitutional
violations. Moreover, plaintiff's sweeping and general allegations
fail to sufficiently identify the specific involvement these defendants.
Plaintiff claims "defendants [. . .] conspired to plan and execute an
illegal strike" see Compl. at 3, without specifying which particular
individual did what. "[P]laintiff cannot rely on a group pleading
against all defendants without making specific individual factual
allegations." 5465 Route 212, LLC v. New York State Dep't of
Transportation, No. 1:19-CV-01510 (BKS/DJS), 2020 WL 6888052,
at *9 (N.D.N.Y. Nov. 24, 2020); see also Lawson v. Ruskin, No. 08-
CV-321, 2008 WL 1902218, at *2 (E.D.N.Y. Apr. 25, 2008)
(explaining that "lumping all Defendants [. . .] together without
specifying what actions were taken, and by whom, to violate his
rights" was insufficient to meet pleading requirements) (citation
omitted).

As discussed supra ; to state a cognizable Section 1983 claim, a
complaint must allege the personal involvement of each of the
defendants. Additionally, Rule 8 of the Federal Rules of Civil
Procedure mandates that a complaint include sufficient allegations
to provide "each defendant fair notice of what the plaintiff's claim is
and ground upon which it rests." Atuahene v. City of Hartford , 10
Fed. App'x 33, 34 (2d Cir. 2001) (internal quotation marks omitted);
see Simmons v. Abruzzo , 49 F.3d 83, 86 (2d Cir. 1995). As
presently plead, plaintiff's allegations are simply too vague to
provide any sort of notice of a claim against any particular
defendant. See Atuahene, 10 Fed. App'x at 34 ("By lumping all the
defendants together in each claim and providing no factual basis to
distinguish their conduct, [the plaintiff]’s complaint failed to satisfy
th[e] minimum standard [set forth in Rule 8].").

Dkt. No. 8 at 12-13.

With the amended pleading, plaintiff identified sergeants, a lieutenant, and Deputy
Superintendent as defendants. However, the pleading does not include any new or
additional facts that remedy the deficiencies identified in the November 2025 Order.
Specifically, plaintiff has not alleged that any named defendant was personally involved in the
strike, confined him to his cell, or withheld various services, medical treatment, or
meals/water. Plaintiff refers to "guards" and officers" but does not identify the "guards" or
officers" as defendants, Doe or otherwise. Instead, plaintiff attempts to impose § 1983
liability based upon defendants' supervisory positions.
While plaintiff identified Anderson as the Deputy Superintendent, plaintiff failed to
plead facts suggesting that Anderson was personally involved in the alleged constitutional
violation or facts from which Anderson could have drawn the inference that plaintiff was
exposed to a substantial risk of harm. Plaintiff does not allege that he informed Anderson of
unusual or unsafe conditions, or that he personally interacted with Anderson in any manner.
While plaintiff claims that Anderson was "informed by other staff" of "said danger," the
pleading does not include any information related to how she was informed, who informed
her, when she was informed, or any facts to suggest that Anderson had any reason to believe
that unconstitutional conditions were being imposed. Thus, there are no facts from which to
plausibly infer that Anderson was "subjectively aware of [a] risk" to plaintiff's health.
Further, while plaintiff claims that he brought his "concerns to every defendant
mentioned in the complaint," see Am. Compl. at 5, the amended complaint lacks any facts
related to when, where, or how plaintiff "brought" his concerns to defendants. As noted in the
November 2025 Order, plaintiff cannot "rely on a group pleading against all defendants

without making specific individual factual allegations." See 5465 Route 212, LLC, 2020 WL
6888052, at *9.
Finally, to the extent that plaintiff attempts to assert an Eighth Amendment claim
against Klein based upon verbal harassment, that claim is dismissed. See Johnson v.
Eggersdorf, 8 Fed. Appx. 140, 143 (2d Cir. 2001) ("allegations of verbal harassment are
insufficient to base a § 1983 claim if no specific injury is alleged"); Shabazz v. Pico, 994 F.
Supp. 460, 474 (S.D.N.Y. 1998) ("verbal harassment or profanity alone, unaccompanied by
an injury no matter how inappropriate, unprofessional, or reprehensible it might seem, does
not constitute the violation of any federally protected right and therefore is not actionable
under . . . § 1983").
For the reasons set forth herein and in the November 2025 Order, plaintiff's Eighth
Amendment claims are dismissed for failure to state a claim.
3. First Amendment – Retaliation
To state a claim of retaliation under the First Amendment, an inmate must allege facts
plausibly suggesting "the following: '(1) that the speech or conduct at issue was protected, (2)
that the defendant took adverse action against the plaintiff, and (3) that there was a causal
connection between the protected speech and the adverse action.' " Gill v. Pidlypchak, 389
F.3d 379, 380 (2d Cir. 2004) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001),
overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). The
Second Circuit has stated that courts must approach prisoner retaliation claims "with
skepticism and particular care," since "virtually any adverse action taken against a prisoner
by a prison official — even those otherwise not rising to the level of a constitutional violation

— can be characterized as a constitutionally proscribed retaliatory act." Dawes, 239 F.3d at
491.
The Second Circuit has defined "adverse action objectively, as retaliatory conduct that
would deter a similarly situated individual of ordinary firmness from exercising constitutional
rights." Gill, 389 F.3d at 381 (cleaned up) (emphasis in original). The "objective test applies
even where a particular plaintiff was not himself subjectively deterred" from exercising his
rights. Id. "[S]ome verbal threats, even if not serious enough to implicate the Eighth
Amendment, can constitute an adverse action." Mateo v. Fischer, 682 F.Supp.2d 423, 434
(S.D.N.Y. 2010); Barrington v. New York, 806 F.Supp.2d 730, 746 (S.D.N.Y. 2011) (holding
that verbal threats may constitute adverse action for purpose of a First Amendment retaliation
if the threat is sufficiently specific). Whether threats constitute adverse action in a particular
case is dependent upon the specificity of the threat and the context in which it was made.
Compare Hepworth v. Suffolk Cnty., No. 02-CV-6473, 2006 WL 2844408, at *8-9 (E.D.N.Y.
Sept. 29, 2006) (numerous verbal threats that inmate "would receive another beating or be
killed" was enough evidence that a "reasonable jury could find that the officers
unconstitutionally retaliated against" inmate) with Bartley v. Collins, No. 05-CV-10161, 2006
WL 1289256, at *6 (S.D.N.Y. May 10, 2006) (threats such as "we are going to get you, you
better drop the suit," do not rise to the level of adverse action).
"A plaintiff can establish a causal connection that suggests retaliation by showing that
protected activity was close in time to the adverse action." Espinal v. Goord, 558 F.3d 119,
129 (2d Cir. 2001). While there is no "bright line . . . defin[ing] the outer limits" of the
"temporal relationship," courts in the Second Circuit have held that an adverse action taken
as much as eight months after the protected activity indicated a causal connection. Grant v.

Bethlehem Steel Corp., 622 F.2d 43, 45–46 (2d Cir. 1980); but see Hollander v. American
Cyanamid Co., 895 F.2d 80, 85–86 (2d Cir. 1990) (finding a lack of evidence that an adverse
action, taken three months after the plaintiff's protected activity, was in response to it).
Here, plaintiff alleges that Klein harassed him for "having to get involved with
[plaintiff's] grievance interview." Am. Compl. at 4. Even assuming plaintiff engaged in
protected conduct when he filed a grievance, the amended complaint lacks facts suggesting
that plaintiff suffered any adverse action that was causally connected to the protected activity.
To wit, plaintiff has not provided facts related to when or where he was "harassed" or the sum
and substance of the alleged harassment. Under such circumstances, the Court has no
basis to plausibly infer that Klein's harassment was likely to deter a similarly situated
individual of ordinary firmness from exercising his or her constitutional rights. See, e.g.,
Hayes v. Dahlke, 976 F.3d 259, 274 (2d Cir. 2020) (holding that threatening statement,
unaccompanied by any subsequent action, and which did not prevent inmate from filing
additional grievances, was unlikely to deter a similarly situated individual of ordinary firmness
from exercising his or her constitutional rights, and therefore did not constitute adverse
action). Plaintiff's allegations of unspecified threats do not support a retaliation claim. See,
e.g., Bartley v. Collins, No. 95 Civ. 10616, 2006 WL 1289256, at *6 (S.D.N.Y. May 10, 2006)
("[V]erbal threats such as ‘we going to get you, you better drop the suit,’ do not rise to the
level of adverse action.").
Plaintiff also failed to provide the date, time, subject, or substance of the grievance
that allegedly motivated Klein. Because the conclusory allegation that Klein retaliated is not
supported by any facts that would allow the Court to assess whether Klein was motivated to
retaliate against plaintiff, the claim must be dismissed. See Faulk v. Fischer, 545 Fed. App'x

56, 59 (2d Cir. 2013) (dismissing retaliation claim where the plaintiff failed to produce
evidence suggesting that the defendants were "motivated by, or even aware of," his
grievance); see also Davidson v. Talbot, No. 01-CV-473 (RFT), 2005 WL 928620, at *16
(N.D.N.Y. March 31, 2005) ("[the plaintiff] fails to allege when [ ] grievances were filed. Thus,
from the outset, "th[e] Court had no way of assessing the strength or validity of such claims.");
see Williams v. Smith, No. 9:11-CV-0601 (LEK/TWD), 2015 WL 1179339, at *10 (N.D.N.Y.
Mar. 13, 2015) ("Adverse actions that predate protected conduct cannot form the basis of a
retaliation claim.").
Further, to the extent that plaintiff attempts to assert a retaliation claim against
"guards" who refused to "provide hot meals for serval days," that claim is dismissed as wholly
conclusory. As noted supra, plaintiff has not identified the "guards" as defendants.
For the reasons set forth herein, the retaliation claims are dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief
may be granted pursuant to Section 1983.
4. State Law Claims
Plaintiff claims that defendants violated the New York State Civil Service Law when
they engaged in a strike. See Am. Compl. at 5. District courts have supplemental jurisdiction
over all state law claims that are so related to federal claims over which they exercise original
jurisdiction that they form part of the same case or controversy under Article III of the
Constitution. 28 U.S.C. § 1367(a) (2000). Here, the state law claims are parallel to plaintiff's
federal claims. Because plaintiff’s federal claims are dismissed, the Court declines to
exercise supplemental jurisdiction over the state law claims. See 28 U.S.C. § 1367(c)(3);
Valencia v. Sung M. Lee, 316 F.3d 299, 306 (2d Cir. 2003).

Ordinarily, a court should not dismiss a complaint filed by a pro se litigant without
granting leave to amend at least once "when a liberal reading of the complaint gives any
indication that a valid claim might be stated." Branum v. Clark, 927 F.2d 698, 704–05 (2d
Cir.1991); see also Fed. R. Civ. P. 15(a) ("The court should freely give leave when justice so
requires.").
An opportunity to amend is not required, however, where "the problem with [the
plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P.,
949 F.2d 42, 48 (2d Cir.1991) ("Of course, where a plaintiff is unable to allege any fact
sufficient to support its claim, a complaint should be dismissed with prejudice."). Stated
differently, "[w]here it appears that granting leave to amend is unlikely to be productive, . . . it
is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987
F.2d 129, 131 (2d Cir.1993); accord, Brown v. Peters, No. 95–CV–1641, 1997 WL 599355, at
*1 (N.D.N.Y. Sept. 22, 1997).
In this instance, plaintiff has already been provided one opportunity to amend his
complaint. The deficiencies with his original complaint, identified by the court in the
November 2025 Order, have not been cured with the amended complaint. Accordingly, the
Court finds that any further amendment would be futile.
III. CONCLUSION
WHEREFORE, it is hereby
ORDERED that the amended complaint (Dkt. No. 17) is ACCEPTED for filing and is
the operative pleading in this action; and it is further

ORDERED that the Clerk of the Court shall amend the Docket Report consistent with
this Decision and Order; and it is further
ORDERED that the amended complaint (Dkt. No. 17) is DISMISSED in accordance
with 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1); and it is further
ORDERED that the Clerk provide plaintiff with copies of the unpublished decisions
cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d76
(2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk shall enter judgment accordingly; and it is further
ORDERED that the Clerk is directed to serve a copy of this Decision and Order on
plaintiff in accordance with the Local Rules of Practice.
Dated: June 12, 2026

Passage view · GavelSight