UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

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NURIDEEN ISLAM, 

Plaintiff, 07 Civ. 3225 (PKC) 

 

-againstMEMORANDUM 

AND ORDER 

ON MOTION 

TO RECONSIDER

BRIAN FISCHER, et al., 

Defendants. 

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P. KEVIN CASTEL, District Judge: 

In a Memorandum and Order dated January 8, 2008, I granted in part and denied 

in part the motion to dismiss of certain defendants. 2008 WL 110244. Counsel for defendants 

now moves to reargue and have this Court reconsider its denial of a motion to dismiss insofar as 

it denied the motion of William Connolly, the Superintendent of Fishkill Correctional Facility 

(“FCF”). I now grant the motion to reconsider in part and dismiss allegations based upon two 

grievances on which Connolly did not act. The motion is otherwise denied. 

I. 

Parties bear a heavy burden in moving for reconsideration under Rule 59(e), Fed. 

R. Civ. P., and Local Civil Rule 6.3. Reconsideration is an “extraordinary remedy to be 

employed sparingly in the interests of finality and conservation of scarce judicial resources.” In 

re Health Management Sys. Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) (quoting 

Wendy’s Int’l, Inc. v. Nu-Cape Construction, Inc., 169 F.R.D. 680, 685 (M.D. Fla 1996)). “The 

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, 

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in other words, that might reasonably be expected to alter the conclusion reached by the court.” 

Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citations omitted); see also

Hammer v. First Unum Life Ins. Co., 2005 WL 525445, at *2 (S.D.N.Y. Mar. 7, 2005) aff’d, 

160 Fed. Appx. 103 (2d Cir. 2005) (noting that reconsideration is only appropriate where “the 

Court overlooked (1) factual matters that were put before it on the underlying motion or (2) 

controlling legal decisions.”). Motions for reconsideration “should not be granted where the 

moving party seeks solely to relitigate an issue already decided.” Shrader, 70 F.3d at 257. 

II. 

In my original ruling, I noted the standards for liability of a supervisor on a claim 

under section 1983. “The personal involvement of a supervisor may be established by showing 

that he (1) directly participated in the violation, (2) failed to remedy the violation after being 

informed of it by report or appeal, (3) created a policy or custom under which the violation 

occurred, (4) was grossly negligent in supervising subordinates who committed the violation, or 

(5) was deliberately indifferent to the rights of others by failing to act on information that 

constitutional rights were being violated.” Iqbal, 490 F.3d at 152-53 (citing Colon v. Coughlin, 

58 F.3d 865, 873 (2d Cir. 1995)). 

I had noted that in paragraph 18 of the Complaint, plaintiff alleged that 

Superintendent Connolly received plaintiff’s grievance and found that there were no facts to 

support plaintiff’s assertions. In paragraph 25, plaintiff alleged that he had appealed 

Superintendent Connolly’s decision. Superintendent Connolly is also alleged in paragraphs 46 

and 59 to have denied subsequent grievances as without merit. Those decisions were also 

appealed. Plaintiff also alleged that he wrote to Superintendent Connolly recommending that 

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indoor air quality be tested weekly and/or monthly. The rationale for denying the motion to 

dismiss was as follows: 

Drawing every reasonable inference in favor of the pro se plaintiff, I 

conclude that Islam has alleged facts sufficient to maintain a claim against 

defendant Connolly. Connolly is alleged to have personally acted on three 

grievances that touched upon the second-hand smoke issue. As to one 

grievance, Connolly is alleged to have “stated” that the two officers 

disputed plaintiff’s version and that there were no facts to support 

plaintiff’s version. (Complaint ¶ 18.) Connolly is alleged to have 

interviewed plaintiff and “the employees in question” concerning one of 

the grievances. (Id. ¶ 46.) Another grievance was rejected by Connolly as 

without merit. (Id.¶ 59.) Taken as a whole and viewed in a light most 

favorable to plaintiff, the allegations are sufficient to state a claim that the 

superintendent of the facility was placed on notice of an unreasonable risk 

of serious harm which he failed to remedy, although it was within his 

power to do so. Of course, whether plaintiff can come forward with 

evidence of actual personal involvement by Connolly or deliberate 

indifference by him to plaintiff’s rights are issues which are best addressed 

at the summary judgment stage. 

2008 WL 110244 at *3. 

In considering a motion under Rule 12(b)(6), this Court is limited to consideration 

of the facts as stated in the complaint, any documents which are attached to the complaint, and 

any documents which are incorporated by reference into the complaint. See Newman & 

Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir.1996). ). The Court may 

consider documents annexed to the complaint or incorporated by reference into the complaint 

without converting the motion into a motion for summary judgment. Int'l Audiotext Network, 

Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (per curiam) (quoting Cortec Indus., 

Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991)). “Even where a document is not 

incorporated by reference, the court may nevertheless consider it where the complaint relies 

heavily upon its terms and effect, which renders the document integral to the complaint.” 

Chambers v. Time Warner, 282 F.3d 147, 153 (2d Cir.2002) (internal quotations and citations 

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omitted); see also Levy v. Southbrook Int'l Investments, Ltd., 263 F.3d 10, 13 n. 3 (2d. Cir. 

2001). 

 Here, the complaint refers to the grievances by number, (e.g., Grievance # 28447-

06; Complaint ¶ 18) and, thus, incorporates them by reference. Because the documents are 

incorporated by reference, they may be considered on this motion; alternatively, they may be 

considered because they are integral to the allegations of the complaint. The contents of the 

documents are beyond dispute by plaintiff because they were submitted by him in opposition to 

defendants’ motion to dismiss. 

The document relating to Grievance # 28447-06 makes plain that it was not 

defendant Connolly who conducted the investigation. Indeed, it was an Acting Superintendent 

who signed in place of Connolly. Thus the allegation in paragraph 18 of the Complaint that 

“Superintendent Connolly stated that Officer Hirsch and Sergeant Turner disputed plaintiff’s 

claims. . . . .” is contradicted by the document on which the allegation is based. Also, in the case 

of Grievance # 28900-07 referred to in paragraph 92, it was an Acting Superintendent, and not 

Connolly, who reviewed the work of others. 

Connolly did act upon and personally signed the decision denying Grievance # 

28571-06, even though he was not the person who conducted the interviews referred to in 

paragraph 46. As to Grievance # 28796-07 referred to in paragraph 59 of the Complaint, 

Connolly acted upon and personally signed the decision of the Superintendent denying the 

Grievance. 

At the pleading stage and drawing all reasonable inferences in favor of plaintiff, it 

is appropriate to assume that Connolly engaged in a meaningful and purposeful review of 

Grievances # # 28571-06 and 28796-07. His review (which he could have delegated but did not 

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in the case of these two grievances) was a necessary step in the New York State Department of 

Corrections Inmate Grievance Program. His signature was not a mere formality. It was not a 

rubber stamp of the work of others. In the context of an allegation of on-going non-enforcement 

of a smoking ban which is said to have risen to the level of a deliberate indifference to the 

serious medical needs of plaintiff, the Superintendent of a Facility, personally reviewing two 

grievances from plaintiff, would likely know if there were a widespread and systematic disregard 

of the ban or, at least, facts warranting a further investigation. 

The complaint also refers to a letter dated February 28 to Connolly (paragraph 91) 

which “recommended that you implement testing the ‘air quality’.” It further suggests weekly or 

monthly testing of certain areas and suggests that “[t]his is the only way to adequately tract the 

smoking problems that pervades this facility.” All that is alleged is that the letter was sent by 

plaintiff to Connolly (paragraph 91). This letter, which was not sent as part of the facility’s 

grievance procedure, may not form an independent basis for liability on the part of Connolly. See

Johnson v. Wright, 234 F. Supp. 2d 352, 363 (S.D.N.Y. 2002) (collecting cases holding that 

ignoring prisoners' letters of protest and requests for investigation is insufficient to premise 

section 1983 liability); Thompson v. New York, No. 99 Civ. 9875 (GBD) (MHD), 2001 WL 

636432, at *7 (S.D.N.Y. Mar. 15, 2001); Rivera v. Goord, 119 F. Supp. 2d 327, 344 (S.D.N.Y. 

2000); see also Johnson v. Goord, No. 01 Civ. 9587 (PKC), 2004 WL 2199500, at *7 (S.D.N.Y. 

Sept. 29, 2004). I need not and do not rule on whether the letter is admissible as evidence in any 

trial. 

III. 

The motion to reargue and reconsider is GRANTED. I have reconsidered all of 

defendant Connolly’s arguments, including qualified immunity. Upon reconsideration, I grant 

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