govinfo:USCOURTS-nynd-9_20-cv-01175-1

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________

KAYSON PEARSON,

Plaintiff,
v. 9:20-cv-01175

ANTHONY J. ANNUCCI, Acting
Commissioner, Department of Corrections
and Community Supervision; DR. JOHN
MORLEY, DOCCS Deputy Commissioner &
Chief Medical Officer; JAMES O’GORMAN,
Deputy Commissioner for Correctional
Facilities; DR. CARL KOENIGSMANN,
former DOCCS Deputy Commissioner &
Chief Medical Officer; JOSEPH BELLNIER,
former DOCCS Deputy Commissioner for
Correctional Facilities; JOHN COLVIN,
Superintendent of Five Points; MATTHEW
THOMS, Superintendent of Mid-State;
STEWART T. ECKERT, Superintendent of
Wende; DONALD VENETTOZZI, Director
of DOCCS Special Housing and Inmate
Disciplinary Program; JOHN or JANE DOES
1–5, members of the DOCCS SHMC at Five
Points; JOHN or JANE DOES 6-10, members
of the DOCCS SHMC at Mid-State; and
JOHN or JANE DOES 11-15, members of the
DOCCS SHMC at Wende,

Defendants.
1
________________________________________

1 While Plaintiff's original complaint asserted claims against Defendant Albert Prack, see Dkt. 1, the First
Amended Complaint does not name Prack as a Defendant. See Dkt. 23. The parties' briefs likewise
do not mention Defendant Prack or include him in the case caption. See Dkts. 42--1, 45, 46. Accordingly, the
Court deems Plaintiff's claims against Defendant Prack to be waived. See Elliot v. City of Hartford, 649 F.
App'x 31, 32 (2d Cir. 2016) (summary order) (noting that it is "generally the case that '[a]ll causes of action
alleged in an original complaint which are not alleged in an amended complaint are waived'") (quoting Austin
v. Ford Models, Inc., 149 F.3d 148, 155 (2d Cir. 1998), abrogated on other grounds by Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002)). The Clerk of the Court is respectfully directed to terminate Defendant
Prack on the docket.
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THOMAS J. McAVOY,
Senior United States District Judge

DECISION and ORDER
I. INTRODUCTION
Plaintiff Kayson Pearson commenced this action asserting that the defendants
violated his rights under the Eighth and Fourteenth Amendments to the United States
Constitution. See First Amended Complaint (“FAC”), Dkt. 23. He contends that while in the
custody of the New York Department of Corrections and Community Supervision
(“DOCCS”) he was subjected to thirteen consecutive years in solitary confinement without
appropriate periodic reviews. Id. Pearson uses the term “solitary confinement” to refer to
his confinement in the Special Housing Unit (“SHU”) under administrative segregation (“Ad
Seg”) status as well as his time in the step-down program
2 because, he contends, the
conditions of Ad Seg and the step-down program were virtually identical for him. See FAC
¶¶ 46-49. The FAC claims that all Defendants and all John/Jane Does (1) violated the Eighth
Amendment by imposing cruel and unusual punishment, (2) violated the Eighth Amendment by
“imposing grossly disproportionate sentences to solitary confinement that served no
penological purpose,” and (3) violated the Fourteenth Amendment right to procedural due
process by failing to provide meaningful review. Id. at pp. 30–34. The action is brought

2 Plaintiff alleges that “[t]he step-down program is supposed to provide a phased transition for individuals in
Ad Seg to return to general population. However, despite its name and ostensible purpose, in practice the
conditions of the step-down program were identical to Ad Seg.” FAC ¶ 47.
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pursuant to 42 U.S.C. § 1983 and seeks declaratory relief, as well as compensatory and
punitive damages from all defendants. See generally id.
Defendants Anthony Annucci, John Morley, James O’Gorman, Carl Koenigsmann,
Joseph Bellnier, John Colvin, Matthew Thoms, Stewart Eckert, and Donald Venettozzi
(“Defendants”) previously moved pursuant Federal Rule of Civil Procedure 12(b)(6) to
dismiss the action against them. Dkt. 26. Defendants argued that Plaintiff’s claims
pertaining to events that took place prior to September 25, 2017 are barred by the
applicable statute of limitation, and that the FAC fails to allege facts plausibly
demonstrating each defendant’s personal involvement in the alleged constitutional
violations. The Court denied the motion as it pertained to the statute of limitations. See
03/21/22 Dec. & Ord. (“Order”), Dkt. 41, at 3-5. The Court denied the motion with leave to
renew as it pertained to personal involvement because neither side had addressed their
arguments under Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020), which held that a
plaintiff must establish that a supervisory defendant directly violated a plaintiff’s
constitutional rights. See id. at 6-8; Trangreti, 983 F.3d at 618.

Defendants now move (1) to dismiss the FAC in its entirety against Defendants
Annucci, Morley, O’Gorman, Koenigsmann, Bellnier, and Venettozzi, and the two Eighth
Amendment claims against Defendants Colvin, Eckert, and Thoms; (2) for reconsideration
of that portion of the Order denying Defendants’ motion to dismiss on statute of limitations
grounds on all causes of action against Defendant Bellnier, and on the Second Cause of
Action against all Defendants, and (3) to sever the claims against Defendants Colvin and
Eckert and transfer them—along with the claims against John/Jane Does 1 –5 and 11–15—
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to the United States District Court for the Western District of New York. Dkt. 42.
Defendants maintain that the Court should permit only the Fourteenth Amendment claim to
proceed and only as to Defendants Colvin, Thoms, and Eckert. Dkt. 42-1, at 2. Plaintiff
opposes the motion, Dkt. 45, and Defendants file a reply. Dkt. 46.
II. STANDARDS OF REVIEW
Motion to Dismiss
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.’” Lynch v. City of
New York, 952 F.3d 67, 74 (2d Cir. 2020)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S. Ct. 1937, 173 L. Ed. 2d 868 (2009) ("Iqbal"), in turn quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ("Twombly")). “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.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). "Although a complaint need not
contain detailed factual allegations, it may not rest on mere labels, conclusions, or a
formulaic recitation of the elements of the cause of action, and the factual allegations 'must
be enough to raise a right to relief above the speculative level.'" Lawtone-Bowles v. City Of
New York, No. 16-cv-4240, 2017 WL 4250513, at *2, 2017 U.S. Dist. LEXIS 155140, at *5
(S.D.N.Y. Sept. 22, 2017) (quoting Twombly, 550 U.S. at 555). Determining whether a
complaint states a plausible claim for relief requires a Court to draw on its judicial
experience and common sense, “[b]ut where the well-pleaded facts do not permit the court
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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.” Iqbal , 556 U.S. at 679.
In considering a motion to dismiss, "the court is to accept as true all facts alleged in
the complaint ... [and] draw all reasonable inferences in favor of the plaintiff." Kassner v.
2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). However, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,”
are insufficient to withstand a motion to dismiss because such statements are not entitled
to the presumption of truth. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
Likewise, "the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678.
Motion for Reconsideration
When a party files a motion for reconsideration, “[t]he standard for granting such a
motion is strict, and reconsideration will generally be denied unless the moving party can
point to controlling decisions or data that the court overlooked–matters, in other words, that
might reasonably be expected to alter the conclusion reached by the court.” Shrader v.
CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995). Reconsideration should be granted when
the moving party shows “‘an intervening change in controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.’” Virgin Atl.
Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18 C.
Wright, A. Miller & E. Cooper, F
EDERAL PRACTICE & PROCEDURE § 4478 at 790). However,
such a motion is “not a vehicle for relitigating old issues, presenting the case under new
theories, securing a rehearing on the merits, or otherwise taking ‘a second bite at the
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apple[.]’” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 41 (2d Cir. 2012)
(quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)).
A motion for reconsideration is not “an occasion for repeating old arguments
previously rejected nor an opportunity for making new arguments that could
have been previously advanced.” Associated Press v. U.S. Dep't of Def., 395
F. Supp. 2d 17, 19 (S.D.N.Y. 2005). It is not a way to “advance new facts,
issues or arguments not previously presented to the Court.” Polsby v. St.
Martin's Press, Inc., No. 97 Civ. 960 (MBM), 2000 WL 98057, at *1 (S.D.N.Y.
Jan. 18, 2000) (internal citation omitted). “Where the movant fails to show that
any controlling authority or facts have actually been overlooked, and merely
offers substantially the same arguments he offered on the original motion or
attempts to advance new facts, the motion for reconsideration must be
denied.” [Mikol v. Barnhart, 554 F. Supp. 2d 498, 500 (S.D.N.Y. 2008)] (citing
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).

The “moving party bears the burden of proof.” Freedom, N.Y., Inc. v. United
States, 438 F. Supp. 2d 457, 462 (S.D.N.Y. 2006). The decision to grant or
deny a motion for reconsideration is “within ‘the sound discretion of the district
court.’” Premium Sports Inc. v. Connell, No. 10 Civ. 3753 (KBF), 2012 WL
2878085, at *1 (S.D.N.Y. July 11, 2012) (quoting Aczel v. Labonia, 584 F.3d
52, 61 (2d Cir. 2009)).

B.C. v. New York City Dep't of Educ., No. 21-CV-2840 (ER), 2023 WL 2301424, at *2
(S.D.N.Y. Mar. 1, 2023).
Motion to Transfer Venue
A district court may exercise its discretion to transfer venue “[f]or the convenience of
parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). Among the factors to
be considered in determining whether to grant a motion to transfer venue are
(1) the plaintiff's choice of forum, (2) the convenience of witnesses, (3) the
location of relevant documents and relative ease of access to sources of
proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the
availability of process to compel the attendance of unwilling witnesses, and
(7) the relative means of the parties.

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D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106–07 (2d Cir. 2006) (internal
quotation marks and alteration omitted). “‘The Second Circuit has consistently held
that a plaintiff's choice of forum is presumptively entitled to substantial deference.’”
Ward v. Stewart, 133 F. Supp. 3d 455, 461 (N.D.N.Y. 2015) (quoting Atl. Recording
Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 698 (S.D.N.Y. 2009)). “In deciding
whether to disturb a plaintiff's choice of forum, the convenience of the witnesses is
generally the most important factor in the transfer analysis.” Rindfleisch v. Gentiva
Health Sys., Inc., 752 F. Supp. 2d 246, 252 (E.D.N.Y.2010). “‘Parties seeking
consideration of this factor must specify the identity of key witnesses and the nature
of their likely testimony, and support these statements with affidavits.’” Ward, 133 F.
Supp. 3d at 461 (quoting Wilson v. DirectBuy, Inc., 821 F.Supp.2d 510, 517 (D.
Conn. 2011)). The party requesting transfer carries the “burden of making out a
strong case for transfer.” Filmline (Cross–Country) Prods., Inc. v. United Artists
Corp., 865 F.2d 513, 521 (2d Cir. 1989) (internal quotation marks omitted).
III. BACKGROUND

Plaintiff has been an inmate in DOCCS custody since 2004, when he was convicted of
kidnapping, rape, murder, and sodomy. See, generally FAC. He has been confined to several
correctional facilities throughout New York State during his incarceration and, as of the date of
the FAC, remained in DOCCS custody. Id. ¶13. As relevant to the FAC, Plaintiff was
incarcerated in the Western District of New York at Five Points Correctional Facility (“Five
Points”) from May 2016 to January 11, 2018; in the Western District of New York at Wende
Correctional Facility (“Wende”) from January 11, 2018 to April 17, 2018; in this District at Mid-
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State Correctional Facility from April 17, 2018 to June 2019; and returned to Wende in the
Western District in June 2019, where he remains as of the date of this motion. FAC ¶13.
Plaintiff entered Administrative Segregation (“Ad Seg”) on April 14, 2006 because,
before he was sentenced, he stabbed his attorney in an effort to escape custody, and he
remained in Ad Seg until April 12, 2018. FAC ¶ 34. The 2006 attack was the only incident
causing Plaintiff to enter Ad Seg. Id. ¶ 4. In April 2018, Plaintiff entered a step-down program
until he was released into general population at Wende in June 2019. Id. In the interim, all
Defendants “were explicitly made aware, through [Plaintiff]’s administrative grievances,
3
written complaints, attempted suicide, and abuse at the hands of prison guards, that [Plaintiff]
was experiencing significant and lasting physical and psychological injury as a result of his
solitary confinement.”
Id. at 83.
While in Ad Seq, Plaintiff was housed in a single-occupancy, 8-foot by 14-foot
concrete cell for at least 22 hours per day. The cell was dirty, with dirty water sometimes
coming out of the sink. A bright light was kept on at all hours of the day, remaining on even
after Plaintiff complained to prison officers. FAC ¶ 40. He was allowed to shower three
times a week, although the showers were often without hot water. His cell became cold
starting in September each year, but officers told him that the heat could not be turned on
until mid-October, so he was cold for weeks at a time every year in his cell. Id. ¶ 41. From
2006 to 2012, Plaintiff was allowed only one hour of outdoor recreation each day. From
2012 until his release into general population, Plaintiff was allowed two hours of recreation

3 The FAC mentions only two grievances. The first was filed on March 15, 2017; and allegedly sent to the
Superintendent of Five Points on May 24, 2017. FAC ¶89. The second grievance —submitted on January 8,
2018—rehashed the content of the first. Id. ¶90.
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each day. Outdoor recreation took place in a 6-foot by 8-foot empty pen which was
enclosed on three sides by solid walls and with one side of mesh fencing. The recreation
pen had no equipment or structure to facilitate exercise. Plaintiff did not have access to
group recreation nor the opportunity to interact with other people, even during these brief
periods of recreation. Further, Plaintiff’s allotted one or two hours of outdoor recreation
were often inaccessible due to the cold temperatures in northern New York. Id. ¶ 42.
While in Ad Seg, Plaintiff was denied access to opportunities for group meals, group
education, or group prayer. He received all his meals through a slot in his door and ate
alone in his cell. In addition, Plaintiff was not permitted to attend therapeutic groups or
programs for his mental health and behavioral needs. While in the step-down program,
Plaintiff was allowed one hour per day, Monday through Friday, of group education.
Plaintiff is Jewish, yet for 13 years he was denied the ability to go to synagogue or to light
Shabbat candles in his cell. Id. ¶ 43.
Plaintiff had minimal human interaction in Ad Seg and in the step-down program.
Typically, his only daily human interaction was with correctional officers or medical staff for
a few minutes at a time. These interactions took place through a small open slot in his cell;
no one came inside Plaintiff’s cell. A counselor made rounds every day, but if Plaintiff
wanted to interact with her, he had to yell out from his cell. For the first nine years of his
time in Ad Seg, Plaintiff was permitted one 30-minute phone call per month. This was later
expanded to a single 30-minute phone call per week. Plaintiff was allowed to see visitors –
without contact – once a week. Id. ¶ 44. Plaintiff was not permitted to interact with other
prisoners and could not see any of the other prisoners. The only way Plaintiff could interact
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with the other prisoners was to yell from his cell. However, Plaintiff does not like to yell and
would face disciplinary sanctions for yelling, so he did not have a chance to talk to anyone
at all. Despite this risk, many prisoners in the SHU yell to communicate with one another.
The constant yelling by the other prisoners prevented Plaintiff from having any prolonged
periods without disturbance. Id. ¶ 45.
Plaintiff was placed into a step-down program on April 12, 2018. He remained in this
program until he was released into general population in June 2019. Id. ¶ 46. He asserts
that the conditions of the step-down program were identical to Ad Seg. Id. ¶ 47. In the
step-down program, Plaintiff was confined to his cell for 21 hours a day. He could not
speak to or interact with other inmates. He still received only one visit per week, without
contact, and was allocated the same privileges regarding personal property and
commissary purchases. His recreation time was still spent alone in a small, concrete block.
The only minor difference between Ad Seg and the step-down program was that Plaintiff
received an additional four hours of inmate programming sessions each week. Plaintiff was
still chained during the sessions, and he received no additional programming on the
weekends, which were spent in complete isolation as in Ad Seg. In addition, the
programming consisted mostly of anger management sessions that were tailored to
inmates who were frequently being shuffled between general population and a SHU for
disciplinary infractions, and Plaintiff found the additional programming to be meaningless
for an inmate who had been in Ad Seg for over a decade. Moreover, Plaintiff did not
receive a single review of his confinement status during his time in the step-down program.
Id. ¶ 48.
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While in solitary confinement, Plaintiff experienced depression, anxiety, suicidal
ideations and self-harm. Plaintiff reported feelings of depression, anxiety and
hopelessness during counseling sessions, but no action was taken to treat or even make a
record of the conditions that Plaintiff reported. Id. ¶ 53. While at Upstate, Plaintiff
attempted suicide by cutting his wrists in June 2011 and was sent to the Office of Mental
Health Satellite Unit of the New York Psychiatric Center (“OMH”) at Clinton Correctional
Facility for observation. The injuries on Plaintiff’s wrists from his 2011 suicide attempt were
serious enough that in May 2014, a mental health evaluation of Plaintiff noted visible scars
on his arms as a result of the prior suicide attempt. Plaintiff’s mental health conditions
ultimately went untreated; after brief observation at Clinton OMH, Plaintiff was returned to
Mid-State, still having feelings of depression, anxiety, and despair. Id. ¶ 54. Shortly after
returning to Upstate, Plaintiff was sexually and physically abused by three or four prison
officers on June 23, 2011 (they covered his face so he does not know the identity of the
officers or exactly how many attacked him). Id. ¶ 55. Plaintiff reported the attack to OMH,
which commenced an investigation, including a medical evaluation of the results of the
attack. However, on information and belief, no officer was held responsible or punished for
the attack. Id. ¶ 56. As a result of the attack, Plaintiff was fearful to return to OMH and to
report his depression, anxiety, or suicidal ideations. He regularly woke up with suicidal
thoughts, but decided not to report them to mental health staff or otherwise act on the
thoughts out of fear that he would be sent back to OMH and suffer another attack by
officers. Id. ¶ 57.
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New York regulations required DOCCS to periodically conduct reviews of Plaintiff's
status on Ad Seg. Id. ¶ 59 (alleging that DOCCS was required to review his status every
30 days); see also 7 N.Y.C.R.R. § 301.4(d)(“An inmate in administrative segregation status
shall have such status reviewed every sixty days in accordance with the following
procedure”).4 However, “the reviews that [Plaintiff] received throughout his entire time in
Ad Seg were equally meaningless and perfunctory,” and he “never received meaningful
review of his Ad Seg status up until the point he was transferred into the step-down
program in April 2018.” Dkt. 23 ¶ 67. Plaintiff contends that the reviews conducted by
DOCCS “contained substantially similar language to prior reviews and used formulaic,
boilerplate language that did not consider any changed circumstances since the previous
review.” Id. ¶ 61; see id. ¶¶ 62-66. Plaintiff was not released from Ad Seg even when the
reviews acknowledged his positive behavior. Id. ¶¶ 64-66, 69. Plaintiff received reviews on
an inconsistent basis and received no reviews for significant periods of time, and received
no reviews at all during his time in the step-down program from April 2018 to June 2019,
“even though the step-down program subjected him to conditions identical to those in Ad
Seg.” Id. ¶ 68.
As discussed more fully below, Plaintiff alleges that some defendants, although
having the authority to end his solitary confinement, failed to do so. Further, he alleges that

4 Section 301.4 was amended effective December 16, 2020. In this decision, the Court cites to the version of
Section 301.4 that was in effect at the time Plaintiff was confined in Ad Seg and the step- down program.

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some defendants who were required to review his solitary confinement status merely
“rubber stamped” the reviews by others and did not conduct their own analysis even
though required to do so.
IV. DISCUSSION
Motion to Dismiss
Defendants argue that the Court should dismiss the FAC in its entirety as to
Defendents Annucci, Morley, O’Gorman, Koenigsmann, Bellnier, and Venettozzi because
Plaintiff fails to allege sufficient facts tending to show their personal involvement in any alleged
constitutional violation. Defendants maintain that the Court should permit only the Fourteenth
Amendment claim to proceed and only as to Defendants Colvin, Thoms, and Eckert.
To establish a defendant's individual liability in a suit brought under Section 1983, a
plaintiff must show "the defendant's personal involvement in the alleged constitutional
deprivation." Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (citations
omitted). A plaintiff must "allege a tangible connection between the acts of a defendant
and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). In Tangreti,
the Second Circuit held that "there is no special rule for supervisory liability" and that "a
plaintiff must plead and prove 'that each Government-official defendant, through the
official's own individual actions, has violated the Constitution.'" 983 F.3d at 618 (quoting
Iqbal, 556 U.S. at 676). “Thus, the ‘factors’ necessary to plead and establish a Section
1983 violation will vary with the constitutional provision at issue' because the elements of
different constitutional violations vary.’” Williams v. Annucci, No. 9:20-cv-1417 (BKS/TWD),
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2021 U.S. Dist. LEXIS 196917, at *12-13 (N.D.N.Y. Oct. 13, 2021)(quoting Tangreti, 983
F.3d at 618, in turn quoting Iqbal, 556 U.S. at 676).
“To state a claim under the Eighth Amendment that a defendant failed to prevent
harm, a plaintiff must plead both (a) conditions of confinement that objectively pose an
unreasonable risk of serious harm to their current or future health, and (b) that the
defendant acted with deliberate indifference.” Vega v. Semple, 963 F.3d 259, 273 (2d Cir.
2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)); see Hendrix v. Annucci, No.
9:20-CV-0743 (GTS/TWD), 2021 U.S. Dist. LEXIS 183934, at *21 (N.D.N.Y. Sep. 27,
2021);5 H'Shaka v. O'Gorman, 444 F. Supp. 3d 355, 377 (N.D.N.Y. 2020).6 “Deliberate
indifference under the Eighth Amendment standard means the official must ‘know[] of and
disregard[] an excessive risk to inmate health or safety; the official must both be aware of
the facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.’” Vega, 963 F.3d at 273 (quoting Farmer, 511
U.S. at 837); see Hendrix, 2021 U.S. Dist. LEXIS 183934, at *21.7 “In addition to satisfying

5 (“In the context of an Eighth Amendment claim, to show that a defendant failed to prevent an inmate's
harm, the plaintiff must allege two elements: (1) ‘conditions of confinement that objectively pose an
unreasonable risk of serious to their current or future health,’ and (2) ‘that the defendant acted with
'deliberate indifference.'")(quoting Tangreti, 983 F.3d at 618-19, in turn quoting Vega, 963 F.3d at 273)

6 (“A plaintiff asserting an Eighth Amendment claim related to the conditions of his confinement must satisfy
both objective and subjective tests: (1) to satisfy the objective test, a plaintiff must demonstrate that the
conditions of his confinement result in unquestioned and serious deprivations of basic human needs such
that the conditions pose an unreasonable risk of serious damage to his health; and (2) to satisfy the
subjective test, a plaintiff must demonstrate that the defendants imposed the conditions with deliberate
indifference, meaning that the defendants knew of, and disregarded, an excessive risk to the plaintiff's health
or safety.”)(cleaned up)

7 (“In the same context, a government official acts with deliberate difference when they ‘know[] of and
disregard[] 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.””) (quoting Vega, 963 F.3d at 273, in turn quoting Farmer, 511 U.S. at 837)
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both requirements of the Eighth Amendment analysis, a plaintiff must show that each
defendant, through their own actions, violated plaintiff's Eighth Amendment rights and was
personally aware of and disregarded an excessive risk to plaintiff's health or safety.”
Hendrix, 2021 U.S. Dist. LEXIS 183934, at *21-22 (citation omitted); see Williams, 2021
U.S. Dist. LEXIS 196917, at *13.8
To state a procedural due process claim under the Fourteenth Amendment, a
plaintiff must establish: "(1) that he possessed a liberty interest and (2) that the defendants
deprived him of that interest as a result of insufficient process." Giano v. Selsky, 238 F.3d
223, 225 (2d Cir. 2001). “The Due Process Clause requires, among other things, that
prison officials periodically review whether an inmate who is confined in Ad Seg continues
to pose a threat to the facility in order to ensure that Ad Seg is not used a pretext to keep
the inmate in the SHU indefinitely.” H'Shaka, 444 F. Supp. 3d at 372 (citing Proctor v.
LeClaire, 846 F.3d 597, 601 (2d Cir. 2017), in turn citing Hewitt v. Helms, 459 U.S. 460,
477 n.9, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). “The purpose of periodic reviews ‘is to
ensure that the state's institutional interest justifying the deprivation of the confined
inmate's liberty has not grown stale and that prison officials are not using Ad Seg as a
pretext for indefinite confinement of an inmate.’” Id. (quoting Proctor, 846 F.3d at 609, in
turn quoting Hewitt, 459 U.S. at 476-77 & n.9, 103 S.Ct. 864)). “The Supreme Court has
noted that prison officials have ‘wide latitude in the procedures they employ’ when Ad Seg

8 (“To state an Eighth Amendment claim, which requires a mens rea of deliberate indifference, a plaintiff must
allege that the supervisor had ‘subjective knowledge of a substantial risk of serious harm to an inmate and
disregarded it.’”)(quoting Tangreti, 983 F.3d at 616, in turn quoting Farmer, 511 U.S. at 837).
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is used to ‘incapacitate an inmate who ‘represents a security threat’ and who remains a
security risk throughout his confinement in Ad Seg.” Id. (quoting Proctor, 846 F.3d at 609,
in turn quoting Hewitt, 459 U.S. at 476-77 & n.9, 103 S. Ct. 864).
The Second Circuit has identified three criteria that meaningful periodic
reviews of continued Ad Seg confinement must satisfy: (1) the officials must
actually evaluate whether the continued confinement is justified rather than
simply go through the procedural motions guided by a preordained outcome
(i.e., regardless of what the evidence shows); (2) the officials must evaluate
whether the justification exists at the time of review or will exist in the future,
considering new evidence related to changes in prison conditions and inmate
behavior, although the officials are not barred from according significant
weight to past events; and (3) the officials' purpose in continuing Ad Seg must
be maintaining institutional safety and security or another valid reason rather
than the desire to impose punishment on the inmate. Proctor, 846 F.3d at 610-
11.
Id. To establish a due process violation against a supervisory official, a plaintiff must prove
that the official was deliberately indifferent to the plaintiff’s constitutional rights by failing to
act on information indicating that unconstitutional practices were taking place. See Wright
v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).
a. Commissioner Annucci’s Personal Involvement
The FAC alleges that Anthony J. Annucci, as Acting Commissioner of DOCCS, “is
responsible for overall management and operation of DOCCS, including the care, custody,
and control of all prisoners housed in DOCCS facilities, and assuring compliance with state
and federal law. The DOCCS Commissioner has final policy-making and supervisory
authority within DOCCS and was at all relevant times responsible for authorizing and
maintaining the unconstitutional policies and customs challenged by [Plaintiff].” FAC ¶ 15.
The FAC further alleges that “Defendant Annucci is aware of the unconstitutional policies
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 16 of 42

and practices used by DOCCS to keep inmates in solitary confinement for lengthy periods
of time,” indicating that Annucci has been a defendant “in at least 10 cases challenging the
unconstitutional conditions and practices in connection with DOCCS Ad Seg.” Id. ¶ 16.
Plaintiff contends that despite Annucci’s “awareness of the unconstitutional risk of harm to
inmates, including [Plaintiff], Defendant Annucci has failed to remedy the unconstitutional
policies and practices that enabled the violations of [Plaintiff’s] rights.” Id. Plaintiff alleges
that “[t]he DOCCS Commissioner Defendants Annucci, Morley, O’Gorman, Koenigsman
and Bellnier each had policy-making and supervisory authority within DOCCS and were
personally involved in authorizing and maintaining the unconstitutional policies and
customs that lead Plaintiff to spend more than 13 years in solitary confinement without
meaningful or timely review. Through their policy-making and supervisory authority, each
of Defendants Annucci, Morley, O’Gorman, Koenigsman and Bellnier could have ended
[Plaintiff]’s time in unconstitutional solitary confinement but did not.” Id. ¶ 79. Plaintiff
further alleges that “[e]ach of the Commissioner Defendants, Superintendent Defendants,
SHU Defendant and SHMC Defendants were explicitly made aware, through [Plaintiff]’s
administrative grievances, written complaints, attempted suicide, and abuse at the hands
of prison guards, that [Plaintiff] was experiencing significant and lasting physical and
psychological injury as a result of his solitary confinement.” Id. ¶ 83. The FAC asserts that
as a result of litigation against certain defendants regarding the unconstitutionality of Ad
Seg conditions, “in addition to news articles and reports publicizing the inhumane
conditions of solitary confinement,
each of the Defendants knew that being confined in
solitary confinement would deprive [Plaintiff] of basic life necessities, basic human dignity,
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 17 of 42

and the right to be free from cruel and unusual punishment. Each of the Defendants could
have taken actions to remove [Plaintiff] from these patently unconstitutional conditions, yet
did not.” Id. ¶ 84. Instead, the FAC alleges, “and in the face of reports about [Plaintiff’s]
positive behavior, each of the Commissioner Defendants, Superintendent Defendants,
SHU Defendant and SHMC Defendants failed to provide [Plaintiff] with meaningful reviews
of his Ad Seg status and failed to transfer him from Ad Seg to the general prison
population for more than a decade.” Id. ¶ 85.
“[G]iven the abrogation of the Colon factors previously used to establish supervisory
liability, the allegations regarding Annucci's policymaking authority and general awareness
of unconstitutional practices are insufficient to adequately plead his subjective knowledge
as to Plaintiff's situation specifically.” Williams, 2021 U.S. Dist. LEXIS 196917, at *14. “To
the extent that Plaintiff asks the Court to infer that Annucci was aware of and personally
involved in Plaintiff's injuries based simply on his position as Acting Commissioner, that is
‘precisely the kind of inference about supervisory officials held impermissible by the
Second Circuit in Tangreti.’” Id. at *14-15 (quoting Zielinski v. Annucci, No. 17-cv-1042,
547 F. Supp. 3d. 227, 2021 WL 2744684, at *8, 2021 U.S. Dist. LEXIS 124088, at *20
(N.D.N.Y. July 2, 2021)). Further, as then-
Chief Judge Suddaby explained in a case
challenging Ad Seg, “Plaintiff must show that Defendant Annucci himself ‘acted with deliberate
indifference’—meaning that Defendant Annucci personally knew of and disregarded an
excessive risk to Plaintiff’s health or safety.” Hendrix, 2021 U.S. Dist. LEXIS 183934 at *30
(quoting Vega, 963 F.3d at 273).
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 18 of 42

The allegations against Annucci are in many respects general and provide only
background as to his authority over DOCCS matters. That being said, the FAC alleges that
Annucci was “explicitly made aware, through [Plaintiff]’s administrative grievances, written
complaints, attempted suicide, and abuse at the hands of prison guards, that [Plaintiff] was
experiencing significant and lasting physical and psychological injury as a result of his
solitary confinement.” FAC ¶ 83. This appears to be nothing more than a broad,
conclusory allegation. The FAC does not allege that Plaintiff’s appeal of the decision
placing him in Ad Seq or his grievances about this confinement made their way to
Commissioner Annucci. See FAC ¶ ¶ 88-90. Nevertheless, “at the pleadings stage, courts
recognize the common-sense principle that a plaintiff will often not be equipped to come
forward with direct evidence of a defendant's subjective or actual knowledge or his intent.”
Stone #1 v. Annucci, No. 20-CV-1326 (RA), 2021 WL 4463033, at *10 (S.D.N.Y. Sept. 28,
2021)(citing Kaplan v. Lebanese Canadian Bank, SAL, 999 F.3d 842, 864 (2d Cir. 2021)
(“A complaint is allowed to contain general allegations as to a defendant's knowledge,
because a plaintiff realistically cannot be expected to plead a defendant's actual state of
mind.”) (citations omitted); Fed. R. Civ. P. 9(b) (“Malice, intent, knowledge, and other
conditions of a person's mind may be alleged generally.”)). While it appears improbable
that Annucci was aware of Plaintiff’s written complaints, attempted suicide, or abuse at the
hands of prison guards, it is not implausible. Thus, the Court will allow the Eighth
Amendment claims to go forward against Annucci. See Lewis v. Hanson, No. 9:18-CV-
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 19 of 42

0012 (LEK/DJS), 2020 WL 1812556, at *4 (N.D.N.Y. Apr. 9, 2020).9 If Plaintiff can
establish Annucci’s mens rea of deliberate indifference to Plaintiff’s long-term solitary
confinement, then he might be able to establish Eighth Amendment claims against Annucci
based on the theory that Annucci failed to discontinue an unconstitutional policy. See
Stone 1, 2021 WL 4463033, at *8;10 Myers on behalf of Est. of Myers v. Davenport, No.
1:21-CV-0922 (LEK/CFH), 2022 WL 3017367, at *5 (N.D.N.Y. July 29, 2022);11 Stone v.

9 (“[A] claim is plausible” and survives a motion to dismiss “if it is supported by enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence of [the alleged misconduct].”) (cleaned up)
10 (“[W]here a plaintiff can establish that a senior official promulgated an unconstitutional policy with a
culpable mental state—in this case, deliberate indifference—the Court is of the view that such official could
be deemed to be personally involved in a constitutional violation.”)

11 In Myers, Judge Kahn wrote:

[T]he Court finds that Plaintiff's fourth cause of action for deliberate indifference and failure to protect
against Impiccatore and Carrion adequately alleges specific policy-making actions taken by those two
defendants. These allegations bring this claim outside the type of supervisory liability precluded by Iqbal
and Tangreti.

Tangreti makes clear that, “after Iqbal, [a p]laintiff can no longer succeed on a § 1983 claim against [a
d]efendant by showing that a supervisor behaved knowingly or with deliberate indifference that a
constitutional violation would occur at the hands of his subordinates, unless that is the same state of
mind required for the constitutional deprivation.” 983 F.3d at 618 (quoting Dodds v. Richardson, 614
F.3d 1185, 1204 (10th Cir. 2010)) (emphasis added). Thus, an official's conduct in making and
executing policy, or failing to make or execute policy, may satisfy Iqbal's requirement of personal
involvement if such conduct meets the elements required to establish an underlying constitutional
violation and is undertaken with the required state of mind. Stone v. Annucci, No. 20-1326, 2021 WL
4463033, at *8, 2021 U.S. Dist. LEXIS 186195, at *29–30 (S.D.N. Y Sept. 28, 2021) (stating that
personal involvement exists “where a plaintiff can establish that a senior official promulgated an
unconstitutional policy with a culpable mental state”).

Accordingly, a plaintiff may establish a policy-making official's personal involvement by, first, alleging
facts from which it may be reasonably inferred the official was responsible for making relevant policies,
and thus there is a tangible connection between their policymaking conduct and the alleged harm.
Stone, 2021 WL 4463033, at *10, 2021 U.S. Dist. LEXIS 186195, at *36 (finding personal involvement
where plaintiffs “plausibly alleged that [defendants] bore the responsibility for creating or allowing the
continuance of policies and customs that allowed sexual violence at [DOCCS facilities] to occur.”)
(quoting Pusepa v. Annucci, No. 17-CV-7954, 2019 WL 690678, at *––––, 2019 U.S. Dist. LEXIS
26292, at *5 (S.D.N.Y. Feb. 19, 2019)). Second, a plaintiff must establish the elements of the underlying
claim directly against each defendant. For an Eighth Amendment failure to protect claim, those elements
are that the defendant was aware of a risk of substantial harm to the plaintiff and —through their own
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 20 of 42

Annucci, No. 20-1326, 2021 WL 4463033, at *9, 2021 U.S. Dist. LEXIS 186195, at *30-33
(S.D.N. Y Sept. 28, 2021);12 Id. at 2021 WL 4463033, at *10, 2021 U.S. Dist. LEXIS
186195, at *36;13 see also Brunache v. Annucci, No. 22-CV-196 (JLS), 2023 WL 146850,
at *12 (W.D.N.Y. Jan. 9, 2023);14 Zielinski v. Annucci, 547 F. Supp. 3d 227, 238 (N.D.N. Y
2021);15 but see Hendrix, 2021 U.S. Dist. LEXIS 183934, at *33-34.16
The Court finds that the FAC does not allege facts plausibly establishing
Commissioner Annucci’s personal involvement in the Fourteenth Amendment claim.
[I]n the context of a Fourteenth Amendment procedural due process claim, to
al
lege a supervisor-defendant's personal involvement, Plaintiff must allege that

actions in making a policy or failing to enact a policy—exhibited deliberate indifference and disregard for
that risk.

2022 WL 3017367, at *5.

12 (finding that “a senior prison official can still be held liable for his role in creating a policy by which
violations of the Eighth Amendment occurred, but only if he can be shown to have acted with the necessary
mens rea of deliberate indifference”)

13 (finding personal involvement where complaint alleged that defendant “as acting commissioner was at all
relevant times responsible for enacting policies governing inmate safety and ensuring that such policies are
enforced”)

14 (“While Tangreti overruled Colon's five-factor test, including factor (3), . . . it did not suggest that a
defendant who created a policy or custom under which unconstitutional practices occurred, or allowed the
continuance of such a policy or custom, cannot be found liable under Section 1983. . . . [A] plaintiff may be
able to establish an Eighth Amendment claim where a prison official allegedly ‘promulgated an
unconstitutional policy with a culpable mental state— in this case, deliberate indifference.’”) (quoting Stone
#1, 2021 WL 4463033, at *8–9)

15 (plaintiff could establish Eighth Amendment denial of food claim against policymaking official if plaintiff
directly established violation by showing official “personally knew of and disregarded an unreasonable risk of
serious harm to plaintiff's health as a result of his [policymaking] conduct.”)(citing Tangreti, 983 F. 3d at 629)

16 (“The fact that Defendant Annucci may have been aware of general issues regarding prison conditions and
the general effect that those issues may have on inmates does not plausibly suggest that Defendant Annucci
had sufficient knowledge of the specific circumstances and details of Plaintiff's Ad Seg confinement. As a
result, the Court finds that Plaintiff's citation to six prior lawsuits against DOCCS employees, some of which
include Defendant Annucci, does not suffice to plausibly suggest either the existence of a DOCCS custom or
policy or the fact that Defendant Annucci had personal knowledge of the specific circumstances regarding
Plaintiff's Ad Seg confinement and disregarded an excessive risk to Plaintiff's health or safety. ”)
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 21 of 42

Defendant Annucci violated the Fourteenth Amendment by Annucci's own
conduct, and not by reason of Defendant Annucci's supervision of others who
committed the violation. Specifically, Plaintiff must show, through factual
allegations, three things: (1) that Defendant Annucci actually evaluated whether
Plaintiff's confinement in Ad Seg was justified; (2) that Defendant Annucci
evaluated whether the justification for Ad Seg existed at the time of the periodic
review or will exist in the future, and considered new relevant evidence related
to changes in the prison conditions and inmate behavior as it became available;
and (3) that Defendant Annucci approved Plaintiff's continued Ad Seg term for
the actual purpose of maintaining the prison's institutional safety and security,
not including punitive reasons. Smith v. Westchester Cnty., 19-CV-3605, 2021
U.S. Dist. LEXIS 127483, 2021 WL 2856515, at *6 (S.D.N.Y. July 7, 2021);
Proctor, 846 F.3d at 611.

Hendrix, 2021 U.S. Dist. LEXIS 183934, at *36 (N.D.N.Y. Sep. 27, 2021).

Here, like in Hendrix, Plaintiff fails to allege facts plausibly suggesting Annucci
satisfied any of these three things. Generally, Plaintiff alleges that Defendants violated his
Fourteenth Amendment right to procedural due process based on a lack of meaningful
periodic Ad Seg review. FAC ¶ 118. This, as Plaintiff contends, resulted in the denial of a
protected liberty interest in avoiding long-term solitary confinement. Id. However, Plaintiff
fails to allege specific factual instances as to Annucci's personal involvement in the
periodic Ad Seg review process. See generally, FAC. Instead of providing factual
allegations showing Annucci's role in depriving Plaintiff of his procedural due process
rights, Plaintiff merely states that “[t]he Defendants deprived [Plaintiff] of a protected liberty
interest in avoiding long-term solitary confinement. The Defendants denied [Plaintiff] of
both meaningful and timely periodic review of his detention in Ad Seg, in violation of the
Fourteenth Amendment.” FAC ¶ 118 (emphasis added). However, there is no mention of
facts that demonstrate how Annucci's own conduct actually caused Plaintiff's procedural
due process deprivation. See generally FAC.
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 22 of 42

Further, nothing in the FAC indicates that the structure of the Ad Seg review process
itself violates Procedural Due Process. Rather, Plaintiff challenges the way in which the Ad
Seg review process played out for him. See FAC ¶¶ 25–29, 48–49, 59–76. The FAC does not
allege that Annucci participates in the Ad Seg review process, so he could only be liable if he
created and/or maintained policies and procedures establishing Ad Seg review that violated
the Due Process Clause. As Plaintiff makes no claim that the review process is structured in
an unconstitutional way, and because there are no allegations that Annucci participated in the
Ad Seg review process, the Court will dismiss the Fourteenth Amendment cause of action as
to Annucci.
b. The Deputy Commissioner Defendants’ Personal Involvement
Defendants argue that Plaintiff fails to establish that Defendants Morley,
Koenigsmann, O’Gorman, and Bellnier 17 were personally involved in the claims in this
case. Plaintiff argues that he has asserted sufficient facts to withstand a motion to dismiss
on the arguments presented by these Defendants.
Plaintiff points out that he alleges that Defendants Morley, Koenigsmann,
O’Gorman, and Bellnier are or were DOCCS Deputy Commissioners, FAC ¶¶ 18-21, who,
by virtue of their positions, “have [or had] policy-making and supervisory authority within
DOCCS and were or are personally involved in authorizing and maintaining the
unconstitutional policies and customs” at issue here. FAC ¶ 17. Furthermore, Plaintiff

17 Defendant Morley is the Acting Chief Medical Officer and Deputy Commissioner of DOCCS. FAC ¶18. At
some unspecified time, Defendant Koenigsmann held the position now occupied by Commissioner Morley.
FAC ¶19. Defendant O’Gorman serves as the Deputy Commissioner for Correctional Facilities, and his
duties “include reviewing and approving periodic reviews for incarcerated individuals’ continuation in, or
removal from, Ad Seg.” FAC ¶20. Defendant Bellnier held Defendant O’Gorman’s position “from
approximately 2011 until his retirement in or about September 2017.” FAC ¶21
.
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contends, the FAC alleges that the Deputy Commissioner Defendants “ha[d] the authority
to make determinations whether to retain the inmate in solitary confinement” or release
him. FAC ¶ 22. Plaintiff alleges that “on at least one occasion since September 2017,
each of the DOCCS Deputy Commissioner Defendants . . . reviewed, approved, and
signed-off on the disciplinary review boards’ continued decisions to keep [Plaintiff] confined
in solitary confinement,” and did so “in knowing disregard of the lack of penological
justification” for it. FAC ¶ 22. The FAC further alleges that “[e]ach of [Plaintiff]’s reviews
require the signature of, and were signed by, one of the DOCCS Superintendents or one of
the DOCCS Deputy Commissioners.” FAC ¶74. The FAC alleges that the Deputy
Commissioners “failed to conduct an independent analysis of [Plaintiff]’s circumstances,”
and instead “rubber-stamped” the disciplinary review board decisions, “denying [Plaintiff]
his right to meaningful review.” FAC ¶ 74. Plaintiff contends that “[t]hrough their policy-
making and supervisory authority, each of Defendants Annucci, Morley, O’Gorman,
Koenigsman and Bellnier could have ended [Plaintiff]’s time in unconstitutional solitary
confinement but did not.” FAC ¶ 79. Rather, Plaintiff maintains, they signed off on his
continued confinement, and failed to act to end that confinement despite their awareness
of the risks of constitutional violations inherent in solitary confinement, and despite their
awareness of “[Plaintiff]’s administrative grievances, written complaints, attempted suicide,
and abuse at the hands of prison guards.” FAC ¶ 83.
Defendants argue that “the relevant question is not whether any defendant
disregarded the ‘lack of justification’ for solitary confinement, but whether the prison ‘official
knows of and disregards an excessive risk to inmate health or safety.’” Def. MOL at 10
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(quoting Farmer, 511 U.S at 837). Plaintiff responds that even if this is the correct
standard, the allegations in the FAC satisfy it. Plaintiff points out that he claims that
despite having knowledge of the substantial risks of solitary confinement, the Deputy
Commissioner Defendants nevertheless made the decision to “review[], approve[], and
sign[]-off” on [Plaintiff]’s continued solitary confinement without “conduct[ing] an
independent analysis.” FAC ¶ ¶ 22, 74. Instead, Plaintiff claims, they “rubber-stamped” the
review board decisions, and so demonstrated deliberate indifference. FAC ¶ 74.
Defendants note the FAC cites to 7 N.Y.C.R.R. §301.4(d)(3) to suggest that a
“Deputy Commissioner has the authority to make determinations whether to retain the
inmate in solitary confinement or to release the inmate from Ad Seg.” FAC ¶22 and n. 4.
Defendants correctly indicate that Section 301(d)(3) expressly applies only to the Deputy
Commissioners for Correctional Facilities (Defendants O’Gorman or Bellnier), not all
Deputy Commissioners. Defendants contend that even when limited to Defendants
O’Gorman or Bellnier, Section 301(d)(3) further limits its own application to scenarios
“[w]here the Deputy Commissioner for Correctional Facilities has notified the
superintendent that an inmate in administrative segregation is to receive central office
review.” Defendants argue that nothing in the FAC suggests either Defendant O’Gorman
or Bellnier notified any superintendent that Plaintiff would receive central office review,
triggering the process whereby Defendants O’Gorman and/or Bellnier would make the final
determination. Defendants contend if such a notification had been made—an occurrence
not indicated by the FAC—“the central office committee shall then complete its report,” and
forward the report along with any statement from the inmate to the Deputy Commissioner
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 25 of 42

of Correctional Facilities, who then makes a decision. Id. Defendants argue that nothing in
the FAC suggests that central office review occurred, or that the central office review was
forwarded to either Defendants O’Gorman or Bellnier for final decision. Rather, Defendants
argue, the FAC simply alleges that the reviews took place at the facilities—not the central
office. See FAC ¶29. Thus, Defendants maintain, the allegations of the Deputy
Commissioners for Correctional Facilities’ personal involvement in a due process violation
are wanting.
Plaintiff counters that the FAC alleges all Deputy Commissioners’ actual personal
involvement in the confinement and the policies at issue, regardless of the § 301.4
procedure. See FAC ¶ 22 (“on at least one occasion since September 2017, each of the
DOCCS Deputy Commissioner Defendants . . . reviewed, approved, and signed-off on the
disciplinary review boards’ continued decisions to keep [Plaintiff] confined in solitary
confinement”). Plaintiff argues that whether this participation took place pursuant to §
301.4 specifically or some other set of circumstances is irrelevant for purposes of this
motion. Plaintiff contends that he is entitled to proceed beyond dismissal because he has
alleged actual personal involvement by each of the Deputy Commissioner Defendants. Pl.
MOL at 14.
Although the allegations against the Deputy Commissioner Defendants are
conclusory, the Court agrees with Plaintiff on this point. Given the allegation at FAC ¶ 22,
which the Court must accept as true for purposes of this motion, Plaintiff has adequately
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 26 of 42

alleged facts plausibly indicating the Deputy Commissioners’ actual personal involvement
in the claims in this case. See Williams, 2021 U.S. Dist. LEXIS 196917, at *17-18.18
Defendants argue in their reply that affirming, denying, or modifying a disciplinary
determination is insufficient to establish personal involvement. Def. Reply at 4 (citing
Abdur-Raheem v. Selsky, 598 F. Supp.2d 367, 370 (W.D.N.Y. 2009); Brown v. Annucci,
2021 U.S. Dist. LEXIS 43011 at *20–21 (S.D.N.Y. March 8, 2021) (holding the affirmance
of subordinate’s determination was insufficient to establish personal involvement); Smart v.
Annucci, 2021 U.S. Dist. LEXIS 14339 at *14 (S.D.N.Y. January 26, 2021) (“That Annucci
and [a First Deputy Superintendent] failed to act on Plaintiff’s complaints . . . through ‘their
own individual actions, have violated the constitution’” and “affirming the outcome of a
prison hearing is insufficient to establish personal involvement”) (quoting Tangreti, 983
F.3d at 615)). Defendants did not raise this argument in their moving brief, and the Court
generally does not consider the merits of an argument without affording Plaintiff an
opportunity to respond. However, the FAC asserts that the Deputy Commissioners, by
virtue of their positions, “have [or had] policy-making and supervisory authority within
DOCCS and were or are personally involved in authorizing and maintaining the
unconstitutional policies and customs” at issue here. FAC ¶ 17. The FAC also alleges that

18 (“The Court finds that the FAC plausibly alleges O'Gorman's personal involvement in the alleged violations
of Plaintiff's Eighth and Fourteenth Amendment rights. . . . From the allegations that O'Gorman approved
Plaintiff's continued placement in solitary confinement, it is reasonable to infer that O'Gorman was
subjectively aware of the risk that Plaintiff's constitutional rights were being violated by prolonged
confinement in isolation, and that he disregarded that risk by approving his continued placement. . . .
Moreover, these allegations ‘connect’ O'Gorman to the review of Plaintiff's continued status in solitary and
the alleged violation of Plaintiff's procedural due process rights.”)(citing Farmer, 511 U.S. at 837; H'Shaka,
444 F. Supp. 3d at 376 (finding personal involvement of DOCCS defendants where they "were directly
involved in the decision to keep Plaintiff in Ad Seg").
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 27 of 42

these defendants, “[t]hrough their policy-making and supervisory authority . . . could have
ended [Plaintiff]’s time in unconstitutional solitary confinement but did not.” FAC ¶ 79.
Thus, it is plausible that these defendants did more than simply affirm, deny, or modify a
particular disciplinary determination. Accordingly, the motion on this ground is denied, and
Defendants are free to raise this argument on a motion for summary judgment.
Regarding Defendants Morley and Koenigsmann, the current and former Chief
Medical Officer of DOCCS, respectively, FAC ¶¶18–19, Defendants point out that Plaintiff
alleges they were responsible for the medical treatment of inmates confined in Ad Seg. Id.
Defendants argue that, aside from a 2011 suicide attempt and a May 2014 mental health
evaluation, id. ¶ 54, the FAC is devoid of any of Plaintiff’s specific medical issues of which
the Chief Medical Officers might know, and contend that “it is not clear from the FAC that
the Chief Medical Officers would know these issues.” Def. MOL at 8-9. However, on this
motion the Court must accept as true Plaintiff’s allegation that “[e]ach of the Commissioner
Defendants . . . were explicitly made aware, through [Plaintiff]’s administrative grievances,
written complaints, attempted suicide, and abuse at the hands of prison guards, that
[Plaintiff] was experiencing significant and lasting physical and psychological injury as a
result of his solitary confinement.” FAC ¶ 83. While Plaintiff may not be able to establish
this awareness as it relates to Defendants Morley and Koenigsmann, that is a factual issue
that cannot be resolved on this motion.
Defendants also argue that “nothing in the FAC suggests that the Chief Medical
Officers had any role in ‘imposing sentences,’ as alleged in the Second Cause of Action.”
Def. MOL at 9. However, the Second Cause of Action seeks to impose liability because,
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 28 of 42

inter alia, the defendants knowingly allowed “[t]he Defendants’ policy of indefinite and
prolonged isolated confinement [that] imposed disproportionate punishment on [Plaintiff]”
to “continue under their supervision and authority.” FAC ¶ ¶ 114, 116. Thus, the claim is
not premised solely on the imposition of a sentence. The motion on this ground is denied.
Defendants also draw a distinction between Morley and Koenigsmann (DOCCS’
Chief Medical Officers) and the other Deputy Commissioner Defendants (O’Gorman and
Bellnier), on the grounds that 7 N.Y.C.R.R. § 301.4 grants only Deputy Commissioners of
Facilities—not Chief Medical Officers —a role in the Ad Seg review process. Def. MOL at 9.
Plaintiff counters that the distinction is not relevant on this motion because the FAC
specifically alleges that all of the Deputy Commissioner Defendants “reviewed, approved,
and signed-off on the disciplinary review boards’ continued decisions to keep [Plaintiff]
confined in solitary confinement.” FAC ¶ 22. Again, the Court must accept this allegation
as true for purposes of this motion, and therefore agrees with Plaintiff. Defendants may
move for summary judgment if discovery reveals no personal involvement by any
individual Defendant.
d. The Superintendent Defendants’ Personal Involvement

The FAC asserts that Defendant Eckert serves as the Superintendent of Wende
Correctional Facility; Defendant Colvin serves as the Superintendent of Five Points
Correctional Facility; and Defendant Thoms serves as the Superintendent of Mid-State
Correctional Facility. FAC ¶ 25. Defendants argue that the FAC fails to allege facts
establishing the Superintendent Defendants’ personal involvement in the Eighth
Amendment claims.
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 29 of 42

As Defendants point out, the FAC asserts that a Special Housing Management
Committee (“SHMC”) was assigned to review the case of each individual in Ad Seg and make
recommendations to the Superintendents as to whether each individual should continue in Ad
Seg. FAC ¶ 29. The FAC asserts that that the Superintendent Defendants “regularly rubber-
stamped the determination [of the SHMC] without independent analysis.” Id. ¶¶ 29, 72–73.
Each of the Superintendents allegedly “approved, reviewed, and signed-off on the disciplinary
review boards’ continued decisions to keep [Plaintiff] in solitary confinement, in knowing
disregard of the lack of justification for such confinement.” Id. ¶¶ 25, 72-75.
Defendants argue that “[s]etting aside the conclusory language that the
Superintendents acted in knowing disregard for Plaintiff’s health and/or safety, the FAC
indicates the extent of their personal involvement was relying upon the SHMC’s
recommendation. The FAC does not indicate that in a non-conclusory manner the
Superintendents had reason to know the SHMC’s recommendation was constitutionally
wrong.” Def. MOL at 12. Defendants maintain:
While the non-conclusory allegation in the FAC barely suffice to establish the
Superintendents’ personal involvement in the Fourteenth Amendment claims,
they fail as to the Eighth Amendment claims. None of the non-conclusory
allegations suggests any of the Superintendents actually “drew the inference”
Plaintiff would be harmed by adopting the recommendation put before them by
the John/Jane Does in review committees. Farmer, 511 U.S. at 837. Nothing
in the FAC suggests that the Superintendents actually knew the John/Jane
Does’ recommendations created a significant risk of serious harm. At most,
the FAC simply indicates that the recommendations were incorrect and that
adopting those recommendations harmed Plaintiff. Accordingly, the FAC claim
lacks sufficient allegations as to the Superintendents’ personal involvement in
the Eighth Amendment conditions of confinement claim.

Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 30 of 42

Id. Defendants also argue that the “FAC pleads no allegations—conclusory or
otherwise—about the Superintendents’ involvement with the 2006 ‘sentence’ to Ad
Seg. Accordingly, the Court should dismiss both Eighth Amendment Causes of Action
as to the Superintendents.” Id. at 13.
Plaintiff counters that “[t]he allegations against the Superintendent Defendants do
not rise or fall with the merits of SHMC’s recommendations; [Plaintiff] claims that despite
knowledge that solitary confinement posed an unconstitutional risk of danger to these
inmates, the Superintendent Defendants nevertheless (1) failed to take any actions to end
that solitary confinement, and (2) ‘failed to conduct an independent analysis of [Plaintiff]’s
circumstances,’ and instead ‘rubber-stamped’ the board decisions [that] authorized
[Plaintiff]’s continued solitary confinement.” Pl. MOL at 17 (quoting FAC ¶ 74). Plaintiff
contends that both of these facts established viable § 1983 claims for deliberate
indifference. Id.
In making this argument, Plaintiff points out that the FAC alleges that “[u]nder
DOCCS regulations, the Superintendent of each facility is required to make an
independent determination whether to retain the inmate in solitary confinement or to
release the inmate from Ad Seg.” Id. ¶ 25. The FAC further asserts that by virtue of their
positions, each Superintendent Defendant exercised broad “policy-making and supervisory
authority with regard to all operations at their respective facilities.” FAC ¶ 25 (emphasis
added). Colvin, Thoms, and Eckert purportedly “review[ed] disciplinary hearings” imposing
solitary confinement, and so were “personally involved in the decision to confine inmates to
Ad Seg and SHU, including [Plaintiff].” FAC ¶ 25.
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The FAC asserts that “on at least one occasion since September 2017, each of the
Superintendent Defendants reviewed and denied” [Plaintiff]’s “complaints and grievances
submitted after [his] disciplinary hearings and approved, reviewed, and signed-off on the
disciplinary review boards’ continued decisions to keep [Plaintiff] confined in solitary
confinement.” FAC ¶ 25. The FAC alleges that “[e]ach of [Plaintiff]’s reviews require the
signature of, and were signed by, one of the DOCCS Superintendents or one of the
DOCCS Deputy Commissioners.” FAC ¶ 74. However, Plaintiff contends, the
Superintendents “failed to conduct an independent analysis of [Plaintiff]’s circumstances,”
and instead “rubber-stamped” the disciplinary review board decisions, “denying [Plaintiff]
his right to meaningful review.” FAC ¶ 74. Furthermore, the FAC asserts that “[t]hrough
their policy-making authority, supervisory authority, and Ad Seg review responsibilities,
each of Defendants Eckert, Colvin, and Thoms could have ended [Plaintiff]’s time in
unconstitutional solitary confinement but did not.” FAC ¶ 80. And it asserts that each
Superintendent Defendant had knowledge of the unconstitutional risk of harm to [Plaintiff]
because “state regulation mandate[s] [superintendents’] involvement in the review of Ad
Seg,” and because the issues with solitary confinement are well-known. FAC ¶ 26.
When accepting the allegations in the FAC as true, and drawing reasonable
inferences in Plaintiff’s favor, Plaintiff has alleged enough to plausibly establish that the
Superintendent Defendants were deliberately indifferent to Plaintiff’s continuation in
solitary confinement despite knowledge of reasons to end that confinement and their
authority to do so. While Plaintiff may not be able to establish the Eighth Amendment
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claims against the Superintendent Defendants, the claims against them will be allowed to
proceed to discovery.
e. Director of Special Housing Venettozzi’s Personal Involvement
Defendants move to dismiss claims against Defendant Venettozzi for lack of
personal involvement. As Defendants point out, the FAC claims that Defendant
Venettozzi’s “authority includes reviewing, affirming, modifying, or reversing dispositions
imposed at Tier III Hearings.” FAC ¶27–28, 81. However, Defendants maintain, “the FAC
does not allege that Defendant Venettozzi reviewed, affirmed, modified, or reversed the
sole disciplinary infraction alleged in the FAC: the 2006 stabbing of an attorney to facilitate
escape from custody.” Def. MOL, Dkt. 42-1, at 13. Defendants further point out that the
FAC claims that Defendant Venettozzi “reviewed, approved, and signed-off on the
disciplinary review boards’ continued decisions to keep [Plaintiff] confined in solitary
confinement, in knowing disregard of the lack of justification for such confinement.” Id.
(quoting FAC ¶ 76, and citing ¶ 81). Nevertheless, Defendants contend, “the FAC pleads
no factual support for its conclusory allegation regarding the incorrect legal standard.
Even applying the correct Farmer standard, the FAC presents no allegations of fact that
Defendant Venettozzi knew of and disregarded a substantial risk to Plaintiff’s health simply
by adopting the SHMC’s recommendations.” Id. Accordingly, Defendants argue, the FAC
does not adequately plead Defendant Venettozzi’s personal involvement in the conditions
of confinement claim. Id.
Defendants also argue that the Court should dismiss the due process claim as to
Defendant Venettozzi. In this regard, Defendants assert:
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While the FAC explains Defendant Venettozzi’s role as SHU Director in the review
of Tier III hearings (FAC ¶¶ 27, 81), the FAC contains no allegations of Defendant
Venettozzi’s role in the Ad Seg review process. This stands in contrast to the
FAC’s description of Superintendents’ role in that process. See FAC ¶¶25, 29, 71–
75. Rather, the FAC just contains the conclusory claim that Defendant Venettozzi
“reviewed, approved, and signed-off on the disciplinary review boards’ continued
decisions.” Id. ¶¶76, 81. This is the type of “unadorned, the-defendant-unlawfully-
harmed-me-accusation” that the Supreme Court decried in Iqbal. 556 U.S. at 678.
The Court should therefore dismiss the due process claim as to defendant
Venettozzi.

Id. at 13-14.

Plaintiff argues that he has stated viable claims against Defendant Venettozzi.
He points out that the FAC alleges that Venettozzi was the SHU Director, and so
“ha[d] policy-making and supervisory authority with regard to SHU and the DOCCS
disciplinary process.” Pl. MOL at 17 (quoting FAC ¶ 27). He further maintains that the
allegations in the FAC assert that, as the SHU Director, Venettozi was responsible for
“reviewing, affirming, modifying, or reversing dispositions imposed at Tier III Hearings.”
Id. (quoting FAC ¶ 27). He also points out that the FAC alleges, “on at least one
occasion since September 2017, Mr. Venettozzi reviewed, approved, and signed-off
on the disciplinary review boards’ continued decisions to keep [Plaintiff] confined in
solitary confinement.” Id. (quoting FAC ¶ 76). Thus, Plaintiff contends, the FAC
adequately alleges that Venettozzi was aware of the unconstitutional risk of harm from
prolonged solitary confinement, and yet took no action to remedy the issues. Id. (citing
FAC ¶ 28). Plaintiff argues that just as with the Superintendent Defendants, he has
sufficiently alleged deliberate indifference as to Defendant Venettozzi.
As the Second Circuit stated:
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In the DOCCS system, there are two relevant reasons for prison
administrators to send an inmate to the SHU—Disciplinary Segregation and
Administrative Segregation (“Ad Seg”). Disciplinary Segregation, as its name
suggests, is designed to discipline an inmate found guilty of a “Tier III”
violation, the most serious of three infraction levels in the DOCCS system.
N.Y. Comp. Codes R. & Regs. tit. 7, §§ 270.2, 270.3(a)(3), 301.2. A
Disciplinary Segregation term lasts “for a designated period of time as
specified by the hearing officer.” Id. § 301.2(a). Once that time elapses, the
statute does not empower DOCCS to punish the inmate doubly for the same
infraction by imposing further Disciplinary Segregation. See id.

Ad Seg serves a different purpose. As relevant here, Ad Seg removes an
inmate from the general population when he “pose[s] a threat to the safety and
security of the [prison] facility.” Id. § 301.4(b). Given the importance of that
purpose, Ad Seg is flexible and accords DOCCS officials substantial discretion
in deciding whether to impose an Ad Seg term. Ad Seg terms are open-ended
and do not require that DOCCS predetermine when it will release an inmate—
“[a]t any time when deemed appropriate [by DOCCS], an inmate may be
evaluated and recommended for return to general population.” Id. § 301.4(e).

Proctor v. LeClaire, 846 F.3d 597, 602 (2d Cir. 2017).

H ere, Plaintiff was not continued in Ad Seq for disciplinary reasons, and Plaintiff’s
reference to the “disciplinary review boards’ continued decisions” does not make it so. See
Williams, 2021 U.S. Dist. LEXIS 196917, at *17 n.7.19 “[T]he FAC does not allege that
Venettozzi was in fact involved in Plaintiff's initial placement in solitary, or that the initial
placement in Ad Seg itself violated Plaintiff's constitutional rights.” Williams, 2021 U.S.
Dist. LEXIS 196917, at *22. “The only other allegation regarding Venettozzi is a
conclusory statement that Venettozzi at some point reviewed, approved, and signed off on
the ‘disciplinary review boards' repeated decisions to keep [Plaintiff] in solitary
confinement.’” Id. “This allegation is insufficient to plausibly allege facts indicating that

19 (“This case does not implicate disciplinary hearings or the disciplinary process. The FAC does not explain
what a "disciplinary review board" is, or its relevance here.”).
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 35 of 42

Venettozzi had ‘subjective knowledge of a substantial risk of serious harm’ to Plaintiff
specifically and disregarded that risk.” Id. at *22-23 (citing Tangreti, 983 F.3d at 616). “The
FAC also does not plausibly allege Venettozzi's personal involvement in the alleged
violation of Plaintiff's procedural due process rights.” Id. at *23 (citing Abdul-Halim v.
Bruyere, No. 19-cv-740, 2021 WL 3783087, at *3, 2021 U.S. Dist. LEXIS 161441, at *7
(N.D.N.Y. Aug. 26, 2021) (noting that affirming the outcome of a prison hearing is not
sufficient to establish personal involvement)). Accordingly, Plaintiff's Section 1983 claims
against Venettozzi are dismissed.
Motion for Reconsideration
Defendants’ motion for partial reconsideration asks the Court to overturn its
Order on two grounds: (1) that the claims against Defendant Bellnier could not have
accrued within the statute of limitation period because he retired in September 2017,
and (2) that [Plaintiff]’s Second Cause of Action is time-barred.
a. Claims against Defendant Bellnier
The Court explained in its Order that, in light of the three-year statute of
limitations and filing date of the instant action, [Plaintiff]’s “claims must have accrued
after September 24, 2017.” Ord. at 3. Prior to the Court’s determination of the first
motion to dismiss, Defendants asserted in their reply brief:
Plaintiff alleges Defendant Bellnier retired from DOCCS in September 2017.
FAC ¶21. In the very next paragraph, Plaintiff alleges that Bellnier took action
on at least one occasion since his retirement. FAC ¶22. These contradictory
assertions do not satisfy the facial plausibility standard. See Iqbal, 556 U.S.
at 678. Any act that defendant Bellnier took under color of state law—i.e. ,
before he retired—would necessarily be outside of the statute of limitations.
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 36 of 42

Defendant Bellnier should be dismissed from the complaint for this reason
alone.

Dkt. 32 at 8.
Defendants now argue that “[t]he FAC acknowledges Defendant Bellnier retired
from DOCCS in September 2017,” and that, “[i]nexplicably, the very next paragraph claims
Defendant Bellnier violated Plaintiff’s constitutional rights after retirement.” Def. MOL at 14.
(citing FAC ¶¶ 21-22)(emphasis in Def. MOL). Defendants further argue that “[g]iven the
FAC’s acknowledgment that Defendant Bellnier retired outside of the statute of limitations,
the Court should dismiss the FAC in its entirety as to him.” Id. at 15.
However, as Plaintiff points out, Defendants incorrectly assert that the FAC
acknowledges that Defendant Bellnier retired outside of the statute of limitations. Pl. MOL
at 20. Rather, the FAC asserts that Defendant Bellnier “was the Deputy Commissioner for
Correctional Facilities from approximately 2011 until his retirement in or about September
2017,” and that “on at least one occasion since September 2017, each of the DOCCS
Deputy Commissioner Defendants . . . reviewed, approved, and signed-off on the
disciplinary review boards’ continued decisions to keep [Plaintiff] confined in solitary
confinement, in knowing disregard of the lack of penological justification for such
confinement.” FAC ¶¶ 21-22. While the phrase “since September 2017” is open to
differing interpretations, Plaintiff argues that the allegations in the FAC “raise the plausible
inference that Defendant Bellnier was working at the DOCCS for at least a seven-day
period within the relevant statute of limitations—September 24, 2017 to September 30,
2017.” Pl. MOL at 20.
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Defendants counter in their reply:

While Plaintiff’s opposition to the motion seeks to focus the Court on the
possibility that he took action in the last few days in September, dkt. 45 at 20,
the FAC makes no such allegation. Rather, the FAC alleges Defendant
Bellnier took action “on at least one occasion since September 2017.” FAC
¶22; accord. id. ¶ 74. Reading paragraphs 21 and 22 of the FAC together,
Plaintiff alleges that Defendant Bellnier’s relevant conduct took place after his
retirement. The FAC alleges no conduct by Bellnier in the timeframe between
September 25, 2017 . . . and the end of September 2017. Plaintiff’s argument
in opposition to this motion does not change what the FAC itself pleads.

Def. Reply MOL at 9. Further, Defendants indicate in a footnote that “[i]f this case
proceeds forward against Defendant Bellnier, documentary evidence will establish his
retirement date as September 5, 2017, so anything Defendant Bellnier did within the
statute of limitations could not have been under color of state law.” Id. at 9, n. 3.
As indicated above, a motion for reconsideration is “not a vehicle for relitigating old
issues, presenting the case under new theories, securing a rehearing on the merits, or
otherwise taking ‘a second bite at the apple[.]’” Analytical Surveys, Inc., 684 F.3d at 41.
Here, the basis for Defendants’ motion for reconsideration relative to Defendant Bellnier
(i.e. the allegations in the FAC) existed at the time Defendants made their first motion to
dismiss, and therefore it appears they are attempting to relitigate old issues, secure a
rehearing on the merits, or otherwise take a second bite at the apple.
Further, to the extent that Defendants now contend that the Court may have
overlooked this argument because the Court did not reference it in the Order, the issue
Defendants raise would not have changed the Court’s decision. See Key Mechanical, Inc.
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 38 of 42

v. BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003).20 Because the Court may only review
the allegations asserted in the FAC, and must provide the non-movant reasonable
inferences from those allegations, the Court would have concluded - as Plaintiff argues
now – that the allegations in the FAC “raise the plausible inference that Defendant Bellnier
was working at the DOCCS for at least a seven-day period within the relevant statute of
limitations— September 24, 2017 to September 30, 2017.” While Defendants are likely to
prevail on this issue at summary judgment, that is not a recognized reason the grant
reconsideration.21 Accordingly, Defendants motion for reconsideration on this issue is
denied.
b. Second Cause of Action
Citing to allegations in the FAC that “[Plaintiff]’s time in solitary confinement was
based on a single violent incident in 2006 that occurred before his sentencing,” and that
the Director of Special Housing/Inmate Discipline denied Plaintiff’s April 2006 appeal of the
decision placing him in Ad Seq, see FAC ¶ ¶ 4, 88, Defendants argue that “[t]o the extent
that the Court reads the FAC’s second cause of action to challenge an April 2006 decision,
such a claim is untimely.” Def. MOL at 15. Defendants contend that the Court should
“view the second Eighth Amendment cause of action as a challenge to the April 2006
determination because the claim would otherwise be duplicative of either the first cause of

20 (explaining that a party seeking reconsideration must identify “factual matters . . . [the court] overlooked
that would have changed its decision”)

21 While the Court will not advise the parties on how to litigate this matter, it seems that if Defendants present
Plaintiff documentary evidence establishing Defendant Bellnier retirement date as September 5, 2017, there
may be a basis for a stipulated resolution as to the claims against this defendant.
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 39 of 42

action (also Eighth Amendment) or the third cause of action (procedural due process).” Id.
In this regard, Defendants argue:
If the second cause of action is truly a challenge to a grossly disproportionate
sentence, as it is framed on page 32 of the FAC, that sentence was imposed in
2006—well outside the statute of limitations. If the Court construes the second
cause of action as a challenge to the Ad Seg review process, it would be
duplicative of the third cause of action regarding procedural due process in the Ad
Seg review process. See Strasser v. New York, 2012 U.S. Dist. LEXIS 11802 at
*2, *19 n.12 (N.D.N.Y. January 26, 2012) (dismissing an Eighth Amendment
cause of action as duplicative of “procedural due process violations . . . arising out
of disciplinary confinement”). In order for the second cause of action to stand
alone—distinct from the remaining causes of action—it would have to be read as
challenging a 2006 action.

Id. at 15-16.

D
efendant’s motion in this regard is denied. Despite being aware of the Second Cause
of Action when briefing their first Motion to Dismiss, Defendants never raised their current
arguments. As the Second Circuit has explained, the Court should not provide Defendants with
an unwarranted and unjustified second bite at the apple to raise new arguments they could
have previously raised. Analytical Surveys, 684 F.3d at 52. A motion for reconsideration
is not
a way to “advance new facts, issues or arguments not previously presented to the Court,”
Polsby, 2000 WL 98057, at *1, and it is not a proper vehicle for a party “to repackage and
relitigate arguments and issues already considered by the Court” or to “raise new
arguments and issues” not before the Court when it decided the motion the first time. In re
Gentiva Sec. Litig., 971 F. Supp. 2d 305, 332 (E.D.N.Y. 2013); see Associated Press v.
U.S. Dep't of Def., 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005).22

22 (A motion for reconsideration is not “an occasion for repeating old arguments previously rejected nor an
opportunity for making new arguments that could have been previously advanced.”)
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Furthermore, Defendants’ request to dismiss the Second Cause of Action improperly
asks the Court to resolve factual questions at the pleading stage about the accrual date of
[Plaintiff]’s constitutional claims. The Court’s Order denying Defendants’ previous attempt to
dismiss the Second Cause of Action explained that [Plaintiff]’s “Eighth Amendment claims are
substantially premised on his thirteen-year-long confinement in Administrative Segregation.”
Ord. at 4 (citing FAC ¶ 2). The Order further highlighted that “[t]he accrual date for Plaintiff’s
Eighth Amendment claims (and thus the beginning of the limitations period) is necessarily a
question of fact that requires a ‘close assessment of the conditions to which [Plaintiff] was
subjected,’ something that cannot be done at the pleading stage.” Ord. at 4 (quoting Gonzalez
v. Hasty, 802 F.3d 212, 224 (2d Cir. 2015)). By asking the Court to now dismiss the Second
Cause of Action as time barred, Defendants seek to overturn the Court’s prior conclusion that
the statute of limitations period must be decided as a question of fact. The Defendants have
provided no new basis for the Court to reconsider its prior decision on that point, and therefore
the motion for reconsideration in this regard is denied.
Motion to Transfer Venue
Defendants motion to transfer venue consists of the contention in the “Preliminary
Statement” section of Defendants’ brief that “[t]he Court may also wish to sever the claims
against Defendants Colvin and Eckert and transfer them—along with John/Jane Does 1–5
and 11–15—to the United States District Court for the Western District of New York, where
the actions allegedly performed by them took place, where the evidence concerning those
allegations is presumably located, and where Plaintiff is incarcerated,” Def. MOL at 2, and
the statement in the “Conclusion” section of that brief that “the Court should consider
Case 9:20-cv-01175-AJB-CBF Document 50 Filed 03/16/23 Page 41 of 42

transferring the Defendants and John/Jane Does whose conduct occurred in Five Points
and/or Wende to the Western District of New York.” Id. at 16.
Defendants have not carried the burden of making out a strong case for
transfer such to overcome Plaintiff’s choice of forum. Defendants have not identified
key witnesses, the nature of these witnesses’ likely testimony, or supported the
putative witnesses’ statements with affidavits. Defendants have also not addressed
the location of relevant documents and the relative ease of access to sources of
proof, the convenience of the parties, the availability of process to compel the
attendance in this District of unwilling witnesses, or the relative means of the parties.
Accordingly, Defendants’ motion to transfer venue is, at this time, denied.
CONCLUSION
For the reasons discussed above, Defendants’ motion to dismiss, for
reconsideration, and to transfer venue, Dkt. 40, is GRANTED in part and DENIED in
part. The motion is granted in that the Fourteenth Amendment procedural due
process claim against Defendant Anthony J. Annucci, is DISMISSED, and all claims
against Defendant Donald Venettozzi are DISMISSED. The motion is denied in all
other respects.
IT IS SO ORDERED.
Dated: March 16, 2023

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